Bill of Rights Contrarianism

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To help clear things up — one reader asked about this — I don’t think Stephan and Norman really have too much disagreement with me on the Bill of Rights. Indeed, in my article I said, “Whether or not the Bill of Rights can ever be an effective means of limiting the government is open to debate. However, the Bill of Rights does offer a fairly good outline of a free society, and it shows how far our country has strayed.”

Many Anti-Federalists (good guys, for the most part) wanted a Bill of Rights. The Federalists didn’t, for a variety of reasons. One argument the latter had was the one Norman brought up, that the enumeration of certain rights would be construed to deny or disparage others retained by the people – the motivation, eventually, for the ninth and tenth amendments.

However, the Anti-Federalists had some counterarguments. Perhaps most compellingly, the Constitution’s main body already contained a “mini-Bill of Rights” in Article I, section 9, which specifically prohibited bills of attainder, ex post facto laws, the granting of titles of nobility, and some other things. Why, asked the Anti-Federalists, is this okay, when an additional Bill of Rights is not? If the Constitution didn’t already enumerate the federal power to grant titles of nobility, for example, was this not already implicitly prohibited, even without the “mini-Bill of Rights”? The point of these provisions in Article I, Section 9 was simply to nail down certain specifically important protections, and so would be the point of the Bill of Rights.

The Anti-Federalists won.

So the question remains: who was right?

I tend to think neither. Congress routinely and shamelessly violates the express rights protected by the first eight amendments all the time. It passes McCain-Feingold, the Brady Bill, the Patriot Act, mandatory minimum sentence laws, and all kinds of legislation that directly contradicts the most plainly protected rights in the Bill of Rights. So I am skeptical of the argument that we are worse off with it due to some inverted understanding that would allow the government to violate any right not specifically guaranteed, since the government violates those enumerated rights, as well. Since it does this, I am also skeptical of the idea that we’d be worse off without the Bill of Rights.

As for Stephan’s 14th Amendment argument, I think this has more to do with the 14th Amendment itself than with the Bill of Rights. Before the incorporation doctrine really picked up, most 14th amendment arguments in federal courts against state rights-violations relied on the “equal protection,” “due process” and “privileges or immunities” clauses. The state business regulations and race-relations laws that were actually struck down were usually done so on the basis of “equal protection.”

In 1907, in the case Patterson v. Colorado, the feds refused to strike down a state censorship law, citing the precedent from 1833’s Barron v. Baltimore, the first major case in which the federal court expressly said that the Bill of Rights did not bind the states. In a 1925 case, Gitlow v. New York, a state law against anti-government speech was upheld — with Oliver “fire in a crowded theater” Holmes ironically dissenting. In 1927, the Supremes again upheld a state censorship law, in Whitney v. California. This time Ollie Holmes concurred.

The incorporation doctrine really picked up in 1930s – after the laissez faire yet centralizing Lochner Era had ended (largely due to the Depression, New Deal, and FDR’s bullying of the courts: the courts abandoned laissez faire in cases regarding federal legislation, at the same time letting states get away with more business legislation; so the end of this “judicial activism” was at once good for some applications of federalism but bad for liberty and other applications of federalism). In the 1931 case, Near v. Minnesota, a state law suppressing newspapers was overturned, on the basis that prior restraint violated the First Amendment, which principles apply to state actions because of the Fourteenth Amendment. In Brandenburg v. Ohio (1969), the Supremes overturned a state conviction of a KKK member who advocated the overthrow of the government. In Brandeburg, the decision specifically said that the “statute falls within the condemnation of the First and Fourteenth Amendments,” and that the “[t]he contrary teaching of Whitney v. California, supra, cannot be supported, and that decision is therefore overruled.”

The First Amendment was the first one “incorporated” — funny, since it is the only article in the Bill of Rights that specifically refers to “Congress” – and some amendments, like the Second, have never really been incorporated at all.

Although the Bill of Rights has often been cited since then in 14th Amendment cases, usually Supremes and Federal Courts speak more of “penumbras” and other such “implicit” rights. In the 1965 case, Griswold v. Connecticut, a state ban on contraceptives was overturned on the basis of an implicit right of privacy, and the decision cited Meyer v. Nebraska, a 1923 case that had overturned a state ban on teaching German to schoolchildren, on the basis that the Nebraska statute violated Equal Protection. The concurring opinion in Griswold did cite the Ninth Amendment, however. In the 1968 case, Duncan v. Louisiana, a man’s conviction was overturned by the Supreme Court since he didn’t get a trial (Lousiana got its legal system mainly from French code, not English common law). But although Duncan’s argument was that the Sixth Amendment binded his state to give him a jury trial, the conviction was overturned on the basis that the jury trial was implicit in the “due process” rights in the 14th Amendment. As in Griswold, the concurring opinion cited Bill of Rights incorporation, but the majority overturned the conviction on the grounds of the 14th Amendment alone.

Overall, the Bill of Rights has rarely been used to rationalize actions that are problematic to principles of federalism, and when it has, the power grabs would have likely come anyway. The 14th Amendment, Commerce Clause, and other provisions are used, and when the Bill of Rights has been cited, it has usually been more of a secondary argument that I think the federal courts have not relied on all too much. The feds are too afraid to “incorporate” the entire Bill of Rights out of fear of “reverse incorporation” – the nutty idea that the Bill of Rights, which was meant to apply to the feds, and was later thought to apply to the states, does apply to the feds, after all (imagine that!). Though there are problems with a top-down libertarian 14th amendment judicial imperialism, the federal court, at this point and historically, tends to overturn state laws – good and bad ones – and rationalize this judicial activity on all sorts of grounds, of which the Bill of Rights is a relatively minor factor.

I tend to doubt that, on balance, we’d be better off – from a libertarian or decentralist standpoint – without the Bill of Rights. I don’t know how much worse off we would be. We can never really know. But I still celebrate it.

What I do know is that if the federal government actually obeyed the Tenth Amendment, and the states and people respected the spirit of the Ninth, America would be a much freer country with a much more decentralized polity. The rest of the Bill of Rights is great, too – though, admittedly, the right of the accused to have “compulsory process for obtaining witnesses in his favor,” in the Sixth Amendment, does violate the natural rights of recalcitrant witnesses.

2:50 pm on December 16, 2004