In a prior post, entitled, “If Congress Can, Unilaterally, Modify The Constitution,” I wrote this brief history of The Bill of Rights:
“Following The Philadelphia (Constitutional) Convention of 1787, where The United States Constitution was debated, written, and sent to the thirteen respective states for ratification, many notable, and well-respected Patriots, and statesmen, such as Patrick Henry and George Mason, also referred to as The Anti-Federalists, publicly spoke out against the ratification of The Constitution. Among the several reasons: they believed it was a threat to Individual Liberties; they were opposed to the new Federal Court system; and feared that The President would eventually morph into a King.”
“At the time that The Constitution was being written, Thomas Jefferson while serving as an U.S. Ambassador in France, wrote to James Madison, advocating for a Bill of Rights. Also, not pleased with the results of The Constitutional Convention, three of the remaining delegates refused to sign the document: Edmund Randolph of Virginia, George Mason of Virginia, and Elbridge Gerry of Massachusetts. A Bill of Rights was demanded if they were to support the Constitution. It was to these men, the Anti-Federalists of the day, and their wisdom and opposition to The Constitution at the time, that we can thank for our treasured Bill Of Rights.”
“Inspired largely by The Virginia Declaration of Rights (1776), which was largely inspired by The English Bill of Rights (1689), James Madison introduced a series of legislative articles to the 1st United States Congress, which were adopted by the House of Representatives on August 21, 1789; proposed, jointly, by Congress, on September 25, 1789; and through the process of state ratification, were adopted as the first ten amendments to The United States Constitution. The Bill Of Rights went into effect on December 15, 1791.”
Although there was much written, in opposition to The Constitution at the time, I continually come back to these words, written under the pseudonym of Brutus – as they are very revealing:
“Ought not a government, vested with such extensive and indefinite authority, to have been restricted by a declaration of rights? It certainly ought. So clear a point is this, that I cannot help suspecting that persons who attempt to persuade people that such reservations were less necessary under this Constitution than under those of the States, are willfully endeavoring to deceive, and to lead you into an absolute state of vassalage.”
Clearly, from the above words, we can conclude that The Bill of Rights were not only created to add additional restraints onto the newly created, Federal Government, but, that, these Constitutional “Protections” were drawn from “pre-existing state constitutions.” Why then does there continue to be this belief, or misconception, that The Supreme Court has some authority over these rights? Clearly, if these restraints were put onto The Federal Government, that would certainly include all agents of The Federal Government – including The Supreme Court.
Prior to The Twentieth Century, it was largely understood, and largely upheld that, The Bill of Rights were there to restrain The Federal Government in certain areas of the people’s lives, and nothing more. It wasn’t until The Supreme Court created a fictitious doctrine, under the guise of The 14th Amendment, Due Process Clause, that they flipped The Bill of Rights on their head and used them to assert more Federal control over the states, and the people’s lives..
Please consider this brief history of The Incorporation Doctrine, from Wikipedia:
“The incorporation of the Bill of Rights (or incorporation for short) is the process by which American courts have applied portions of the U.S. Bill of Rights to the states. Prior to the 1890s, the Bill of Rights was held only to apply to the federal government. Under the incorporation doctrine, most provisions of the Bill of Rights now also apply to the state and local governments, by virtue of the due process clause of the Fourteenth Amendment of the Constitution.”
“Prior to the ratification of the Fourteenth Amendment and the development of the incorporation doctrine, the Supreme Court in 1833 held in Barron v. Baltimore that the Bill of Rights applied only to the federal, but not any state governments. Even years after the ratification of the Fourteenth Amendment, the Supreme Court in United States v. Cruikshank still held that the First and Second Amendment did not apply to state governments. However, beginning in the 1920s, a series of United States Supreme Court decisions interpreted the Fourteenth Amendment to “incorporate” most portions of the Bill of Rights, making these portions, for the first time, enforceable against the state governments.”
“The genesis of incorporation has been traced back to either Chicago, Burlington and Quincy Railroad v. City of Chicago (1897) in which the Supreme Court appeared to require some form of just compensation for property appropriated by state or local authorities (although there was a state statute on the books that provided the same guarantee) or, more commonly, to Gitlow v. New York (1925), in which the Court expressly held that States were bound to protect freedom of speech. Since that time, the Court has steadily incorporated most of the significant provisions of the Bill of Rights.”
Often times, we hear The Second Amendment cited, as our Constitutional Protection to bear arms; but, how many people have taken the time to actually review their state constitutions? At least 40 states have an explicit clause, in their state constitutions, guaranteeing their citizens the right to bear arms.This is not to minimize our 2nd Amendment, but only to put it into it’s proper perspective. It is there to restrain The Federal Government from making laws in regards to this right, but our state constitutions are where this “Constitutional Protection” truly lies. Therefore, if this right is already protected in our state constitutions, why would we want to give The Federal Government, which includes The Supreme Court, any power in this area?
In this recent post, by The Tenth Amendment Center, on The Bill of Rights, the author made a very astute point in regards to The Second Amendment:
“Since the Second Amendment did not create or grant any right concerning firearms, the right enumerated in the Amendment has to be an existing right separate from the Amendment. Thus, repealing the Second Amendment would not eliminate any right because the right enumerated in the Amendment was not created by the Amendment. The right to keep and bear arms exists independent of the Constitution or the Second Amendment.”
The above paragraph is a great insight into natural rights. For example, these rights are not granted by government, state or federal, but rather, are part of our humanity, and considered God-given rights. And, to that extent, these rights are more like “Constitutional Protections,” of rights, that pre-exist Government.
Some people, who are not well-informed on this topic, or simply feel uncomfortable with it, will often ask questions such as, “if The Supreme Court didn’t apply these rights to the states, couldn’t the states, for example, establish state religions”? While that would be a great question, it has already been answered: By the mid 1800s, all states in the union had already, by their own accord, disestablished all state religions in their respective states.
And, for the more conservative Americans, I would ask them to consider that The Supreme Court has used this very same, Supreme Court-created, Incorporation Doctrine, in their Roe vs. Wade decision, which has seriously hindered the individual states ability to legislate in the area of abortion, and Everson vs The Board of Education, which was the beginning of the end for school prayer etc.
In fact, I would encourage anyone who is reading this post to use this link to search for your state constitution, and compare it with The Federal Bill of Rights. I believe that many people will be surprised to find that most of the constitutional protections that we have come to treasure in The Federal Bill of Rights are already present in their state constitution. And, if they are not, there surely is a way to work toward amending your respective constitution.
While, in one regard, a Supreme Court decision may work for the good of some individual initiative, their decisions, as we have seen, can also lead to the nationalization of some very bad decisions – which, can have some very long-term, negative ramifications. In my humble opinion, it is far better to have a few states lacking in certain constitutional protections, which can be remedied by their respective citizens, then it is to have 9 people in our Federal Government, using their nationalist agenda, to further destroy our state sovereignty, and by extension, our individual rights, and sovereignty.
Whether it is our natural right to self-defense, or any other God-given right, we should hold firmly to this maxim: that, in regards to these rights, “No Federal Permission Slip Is Required.”
Posted, originally at, The Original Republican