The Bill of Rights
December 15 was Bill of Rights Day. People have different reactions to the Bill. For some, it is the most important feature of the Constitution, indicating and protecting the rights that people enjoy. The rest of the Constitution may be a good one, but it is these rights that are essential. For others, the Bill of Rights is a regrettable feature that gave the Court the opportunity to govern the country in many areas in whatever it desires.
My view is somewhere in between. I believe that the structural features of the Constitution – the separation of powers and federalism – are key features for preserving liberty and good government. But I also believe that the individual rights are an important part of the constitutional mix, protecting substantial interests against government intrusion. Significantly, the Bill of Rights is primarily enforced through a feature of the separation of powers – judicial review.
It is often forgotten that the Bill was initially applied only to the federal government, not to the states. In many ways, it was a federalism provision, preventing the distant federal government from infringing on the rights of people. It was not that people believed that the states should be able to violate those rights. Instead, they believed that many of those rights were already protected by state bills of rights and that the state governments could be better trusted to protect those rights.
After the Civil War, however, the Republicans came to view the states as the primary danger to people’s rights. Consequently, the 14th Amendment applied its restrictions only to the states. And it is only with the 14th Amendment that the Bill of Rights has been applied to the states. While the Supreme Court has held that most of the Bill’s provisions apply to the states under the Due Process Clause, a far better argument is that all of the Bill applies to the states under the Privileges or Immunities Clause. (For a recent book arguing for this provision, see Kurt Lash’s The Fourteenth Amendment and the Privileges or Immunities of American Citizens.)
One last wrinkle is the content of the Bill of Rights. There is a strong (but not conclusive) argument that the Bill of Rights has a different meaning as applied against the federal government than as incorporated against the states. The Bill enacted in 1791 had a content as of that date, but the Bill was understood differently when it was applied against the states in 1868. The difference matters. As Akhil Amar has argued, the Republican understanding of the Bill in 1868 was much more nationalistic and individualistic than was the Antifederalist understanding of it in 1791. For my own exploration of the meaning of the Takings Clause under the original Bill and the incorporated Bill, see here.
Some people have argued that the 1868 understanding not only governs the incorporated Bill, but also somehow applies to the federal government. But this seems mistaken, since it is hard to fathom how a provision that applies to the states – and only to the states – could affect the content of the Bill that applies to the federal government.