- Published: 08 January 2012
The "Bill of Rights" amendments (the first eight, specifying particular rights, supplemented by the Ninth and Tenth Amendments expressly reserving to the people and to the States their non-delegated rights and powers) are, in reality, express prohibitions against the Federal government additional to those previously stated in the body of the Constitution. They are therefore properly considered to be a partial and supplementary Bill of Prohibitions which particularize some of the previously created boundaries, or limits, of this government's powers. They may be likened to additional posts put in a fence to strengthen it--the fence built around the field of powers of the Federal government, to "fence in" this potential monster of power. As made clear in The Federalist (number 84, by Hamilton), this concept, of these "Bill of Rights" amendments being in truth a Bill of Prohibitions, is in keeping with the American philosophy of the people's deriving their rights from God and, in turn, creating governments with limited powers to keep these rights secure; which is diametrically opposed to the philosophy of king-granted rights and the related statement of such rights in a Bill of Rights. (See also no. 26.) A Bill of Rights is not only not necessary in connection with American Constitutions (Federal and State) but, in theory, is inconsistent with the American philosophy of limited government created by the people, because there can be no need of listing merely a few of the powers not granted. However, as those who advocated the addition of the "Bill of Rights" amendments had in mind, such an express statement of certain prohibitions against the Federal government--for instance, against violation of freedom of religion, of the Press, of speech, and so on--could serve as a focus of the people's attention and affection and a readily available rallying point for opposition by the people to any Federal infringements; and experience has proved this to be true. In other words, the addition of the "Bill of Rights" (Prohibitions), as amendments to the Constitution, can be useful even though not essential; as Madison, for example, explained in his letter to Jefferson (then in Paris) of October 17, 1788 and in his speech on this subject in the First Congress on June 8, 1789.
It is of particular interest to note that the main point made in the explanation, as presented by Hamilton in The Federalist number 84 as mentioned above, of the omission by The Framers from the Constitution of any Bill of Rights, was publicized soon after the Framing Convention adjourned by one of its members, James Wilson. This was in an address on October 6, 1787 in which he stated, in part, with regard to the people's creation of the central government, that:
". . . it would have been superfluous and absurd to have stipulated with a foederal body of our own creation, that we should enjoy those privileges, of which we are not divested either by the intention or the act, that has brought that body into existence." (By "foederal body," Wilson meant the Federal government; and by "privileges" he meant the rights reserved to the people.)
The fact that Wilson's explanation, which he soon thereafter stated more fully in the Pennsylvania Ratifying Convention, reflected the thinking of The Framers as a group, is further indicated by the fact that Washington referred to it with approval in a letter to Lafayette of April 28, 1788; just as Hamilton's similar explanation in The Federalist (number 84)--in which Madison silently acquiesced--reflected the thinking of the Framing Convention.
The "Bill of Rights" (first eight) amendments are thus seen to have created no new limits, or prohibitions, as to Federal power. Instead, they merely confirmed expressly and specifically a few of the multitude of prohibitions which had already been implied as a part of the original Constitution's over-all prohibition through its denial of all powers other than the few it enumerated as being delegated to the Federal government. The Constitution's limits on the power of this government would have been the same if these amendments had never been adopted, as Hamilton and Wilson made clear.
It is most important to keep in mind, moreover, that these "Bill of Rights" amendments were intended by the framing Congress, and by the legislatures of the States which ratified them, to apply against the Federal government only. They were not intended to be applicable, or to operate, against the governments of the States; as all competent and reliable authorities have always agreed. This has continued to be true ever since, to the present writing, because the Constitution has never been amended so as to make any change in this regard--so as to make these amendments apply against the States. It is especially noteworthy that the Fourteenth Amendment was not intended by the Congress which framed it, or by the State legislatures which ratified it, to make any such change--to make the first eight amendments apply against the States. No such change was expressed in this Amendment's words or was intended by implication, as all competent and reliable authorities have always agreed. During the approximate century which has elapsed since the adoption of this Amendment, the Supreme Court has repeatedly and consistently so decided, as in the 1959 Bartkus case stating (page 124 of opinion):
"We have held from the beginning and uniformly that the Due Process Clause of the Fourteenth Amendment does not apply to the States any of the provisions of the first eight amendments as such. *The relevant historical materials have been canvassed by this Court and by legal scholars. **These materials demonstrate conclusively that the Congress and the members of the legislatures of the ratifying States did not contemplate that the Fourteenth Amendment was a short-hand incorporation of the first eight amendments making them applicable as explicit restrictions upon the States." (*Citing earlier cases. **Citing Fairman article mentioned below.)
Two scholars here referred to are Stanford University's former Law Professors, Charles Fairman and Stanley Morrison, whose superb articles in the Stanford Law Review of December, 1949 are conclusive in their presentation and discussion of the exhaustively researched, historical evidence proving their proposition: that neither the framing Congress nor the ratifying legislatures of the States intended, or understood, that the words of the Fourteenth Amendment would make the first eight amendments applicable against the States. The massive historical evidence resulting from the sound and thorough research by these two scholars, as presented especially in the Fairman article, abundantly supports the above-stated proposition and leaves no room for doubt that to pretend to the contrary is to falsify history, wittingly or unwittingly. Furthermore, it proves that the word "liberty" in the Fourteenth was intended merely to give all persons (notably colored) in any State the same Liberty then enjoyed by that State's white Majority (except as to voting, covered later by the Fifteenth); but not to give Federal judges any blank-check power, typical of Rule-by-Man, to make "Liberty" mean whatever their changing whims might dictate from time to time so as, for example, to permit them to make applicable against the States this or that part of the Bill of Rights. (This would be prohibited law-making by judges, as discussed later--pages 195-197, 199.) The intent was the same as to the Fourteenth's words "equal protection of the laws."
An additional and especially persuasive item of evidence, indeed conclusive in and of itself, as to the intent of the Congress which framed the first eight amendments--that it did not intend them to apply against the States---is this. When considering the first group of amendments, the House of Representatives debated a considerable number of proposed amendments, of which only twelve received final approval by both Senate and House and were referred to the States for ratification (of which only ten were ratified). One which did not receive such final approval was a proposed amendment--adopted by the House on August 17, 1789--designed expressly to prohibit the States from infringing freedom of speech and the press. This was already prohibited to the Federal government under a separate, proposed amendment (which finally became the First Amendment). The fact that the House at first considered it necessary to have the above-noted amendment expressly specifying the States, in order to be applicable against the States, is additional evidence that the ratified amendments were not intended to apply against the States.
The American philosophy and system of limited government was made express by the Constitution--as supplemented by the "Bill of Rights" Amendments, applying against the Federal government only.