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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.

Reader Discussion

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on December 24, 2014 at 10:53:20 am

In 1868, the adopters of the 14th amendment wanted to apply already-enumerated rights against the states. A non-original meaning was never enumerated, was it?

The government often makes mistakes, without meaning to make them, and once they have been discovered the mistakes are not considered binding.

http://www.americasfreedomfighters.com/2014/05/25/insanity-world-war-ii-veteran-benefits-slashed-to-6-a-month/

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Andrew
on December 24, 2014 at 10:57:14 am

P.S. Here's a followup link

http://wnyt.com/article/stories/s3483639.shtml

Presumably the overpayments stopped.

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Andrew
on December 25, 2014 at 02:18:49 am

It is not clear what the 14th Amendment Framers wanted -- the original rights or the rights as understood in 1868. Based on my understanding of the Framing, I think they actually wanted the 1868 rights.

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Mike Rappaport
on December 25, 2014 at 09:52:00 am

This would be a real dilemma if there were a pre-1868 US Supreme Court decision misinterpreting a constitutional right. In that situation, I don't know what the framers of the 14th would have wanted to follow. But the issue may be moot, because I'm not aware of any such pre- 1868 SCOTUS case.

Sen. Howard introduced the 14th Amendment with a statement that proper interpretation of the Comity Clause would have to await a SCOTUS decision: "we may gather some intimation of what probably will be the opinion of the judiciary...."

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Andrew Hyman
on December 25, 2014 at 11:12:18 am

Andrew:

Sen. Howards' comment is rather scary. It would seem that even in that age of supposed *better statesmanship* our Legislators were already pre-disposed to abandoning their own role in *expounding* the constitution ( as well as their own enactments) and leaving it to the Judiciary to determine what they, our Legislators, intended.

To my mind, this is quite a different thing than allowing for a little ambiguity in the text in the belief that a future Legislature (or the People) would work it out. Instead the tendency to avoid the hard decisions appears to have been present even then - and thus the court grows in influence and power.

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gabe
on December 25, 2014 at 11:46:16 am

Gabe:

It's kind of amusing that life tenure was supposed to protect judges from political influence so that they could focus on what the law ACTUALLY says instead of what it SHOULD say. Instead, recent history shows that life tenure protects judges from political accountability when the judges decide what the law SHOULD say.

It's quite an enigma how to solve this problem without making it worse. The one thing I'd recommend most is to focus on legislative solutions to the problem. Proposing constitutional amendments that can never pass is a total waste of time. There are plenty of possible legislative solutions, given the power of Congress to alter the jurisdiction of the courts, to determine the size of each court, to decide their budgets and rules of procedure, to create new courts, to determine how judgments are enforced or executed, to formulate judicial oaths, et cetera.

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Andrew Hyman
on December 25, 2014 at 12:48:26 pm

Andrew:

Agreed!

What, however, I find distressing is that (if my memory serves me at all) when the Congress, in fact, attempted this (was it Boumedine v..) by selectively stripping the court of jurisdiction, the Court went ahead and found a reason to "review" it anyway.
Nevertheless, I agree that were the congress to assert its own Constitutional *expository* powers AND to use its delegated powers to structure the Court and define its role, we may very well be much better off.

Anyway, Merry Christmas and Happy Hanukah to all!!!

gabe

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gabe

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.