Did the framers intend for the BoR to apply to the states?
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All 16 are covered by this: “A declaration of rights made by the representatives of the good people of Virginia, assembled in full and free convention; which rights do pertain to them and their posterity, as the basis and foundation of government.” (Emphasis added.)
It is part of the United States, in which country the Constitution (including the BOR) is the supreme law.
Circular reasoning. You are not entitled to assume that in your argument. In this thread, at least, the question is open.
The 2nd reserves the right for the People to keep and bear arms by stating "the right of the People to Keep and Bear Arms shall not be infringed" (that's you and me)
The 10th says that "The powers not delegated to the United States by the Constitution, nor prohibited by it(the Constitution) to the states, are reserved to the states respectively, or to the people. (the 2nd prohibits the States)
To summarize... The 2nd reserves the right to keep bear arms for the People and the 10th says that anything prohibited to the States by the Constitution is off limits for the States. The 2nd through the 10th prohibits the States from infringing on the People’s right to keep and bear arms.
This also proves to me that the 14th is not needed as far as so-called "incorporation" is concerned. The 10th already incorporates the Constitution and BOR...
The 10th says that "The powers not delegated to the United States by the Constitution, nor prohibited by it(the Constitution) to the states, are reserved to the states respectively, or to the people. (the 2nd prohibits the States)
To summarize... The 2nd reserves the right to keep bear arms for the People and the 10th says that anything prohibited to the States by the Constitution is off limits for the States. The 2nd through the 10th prohibits the States from infringing on the People’s right to keep and bear arms.
This also proves to me that the 14th is not needed as far as so-called "incorporation" is concerned. The 10th already incorporates the Constitution and BOR...
I don't know how you can construe text that reads "powers...are reserved to the states...or to the people" as specifying which powers are reserved to the states vs. the people.
If a power that's not delegated to the US, e.g. the power to prohibit gun ownership and use, it could still be a power reserved to the states. If the Federal Government cannot infringe on the right of the people to keep and bear arms, the states, perhaps, can, under the 10th.
The 14th does clarify this, and a lot of history demonstrates that the 10th was insufficient to resolve these questions at all. American history shows that, if there is no specific prohibition, and sometimes if there is, governments at every level will do their best to take what power they can.
hugh damright
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Then why the need for amendment? If a republican form of government meant that there could be no racial discrimination, and the US Constitution guaranteed a republican form of government, then what were the reconstruction amendments all about?
In my view, when yankees amended the US Constitution by military force, they did not give us a republican form of government, they took away our republican form of government. In fact, I've read in the congressional record where Virginia asked when it might get back its republican form of government.
I am in the middle of reading *all* of the congressional debates on the reconstruction amendments ... while yankees would define "a repubublican form of government" to mean whatever they found convenient at the moment, they seemed to ignore the fact that the States' intent with that clause was for the US to preserve the existing State governments, which were considered to be republican ... the clause was not intended to empower the US to alter the State governments. It seems there is no part of the US Constitution that yankees cannot find a way to turn against itself.
Actually, the Constitution itself applies only to the Federal Government.
The Federal Government is prohibited from infringing on the right of the People to keep and bear arms. I can see no way to read this as something other than an individual right, but if you consider the nature of the Constitution, it also does not apply the same restriction to the State governments.
The Bill of Rights does not prohibit the State governments from doing anything at all, pre-14th.
Presumably, while no Federal law could establish a religion, a state could, for example. I don't believe any did, but that was by choice and by each State constitution, not because the Federal Constitution didn't allow it. Most state constitutions contain some mirror of the Bill of Rights, or parts thereof. Note that there would be no reason to do this, if the Constitution's protections applied automatically to State governments.
The Federal Government is prohibited from infringing on the right of the People to keep and bear arms. I can see no way to read this as something other than an individual right, but if you consider the nature of the Constitution, it also does not apply the same restriction to the State governments.
The Bill of Rights does not prohibit the State governments from doing anything at all, pre-14th.
Presumably, while no Federal law could establish a religion, a state could, for example. I don't believe any did, but that was by choice and by each State constitution, not because the Federal Constitution didn't allow it. Most state constitutions contain some mirror of the Bill of Rights, or parts thereof. Note that there would be no reason to do this, if the Constitution's protections applied automatically to State governments.
hugh damright
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So now you are saying that the USBOR empowers the SCOTUS with jurisdiction over intrastate conflicts involving "rights"? I have read Article III, and it creates a SCOTUS with no jurisdiction over affairs between a Citizen and his State.
OK ... and the USBOR also has a Preamble which declares that the intent is to bind the powers created by the US Constitution, and yet there is the assertion that it binds the States unless it says otherwise:
THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.
If the USBOR limits the States, then shouldn't its preamble say something such as:
THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of their powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the State Governments, will best insure the beneficent ends of their institutions.
hugh damright
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I understand the Tenth to say that powers are reserved to Virginia, either to the Virginia State government, or else to the people of Virginia if we have not delgated the power in question. In other words, what the US Constitution does not enumerate as a federal power remains an intrastate power.
Some people are inclined to take the States out of the States' Rights Amendment, and read it to say that powers within Virginia are reserved to the people of the whole US, which turns the amendment against itself.
Some people are inclined to take the States out of the States' Rights Amendment, and read it to say that powers within Virginia are reserved to the people of the whole US, which turns the amendment against itself.
The BOR preamble doesn't need to, because the amendments are a part of the constitution, and the constitution says it is the supreme law of the land. No further clarification is (should be) necessary. Also, because they were amendments, they overide anything that came previously. So after 1791, the constitution prohibits the infringement of certain rights - that power of infringment is prohibited - to the US AND to the states, otherwise the states would be in conflict with the supreme law...
I don't think the people would be thrilled if the States could, say, suspend the Writ of Habeas Corpus or pass ex post facto Laws, even though the feds can't.
No doubt the people were more concerned at this time with the new federal govt then they were with their state govt's, but that does not change what the constitution says.
ABear,
The Constitution deals with other entities besides the federal gov't - it deals with State powers, privileges of the people, the roll of the Militia, persons charged with crimes, the law of the land, etc. After the BOR was added, it also enumerated basic rights of the people, said a Militia was necessary, talked about bail, guaranteed due process, etc. - and not just in dealings with the federal gov't.
I don't think the people would be thrilled if the States could, say, suspend the Writ of Habeas Corpus or pass ex post facto Laws, even though the feds can't.
No doubt the people were more concerned at this time with the new federal govt then they were with their state govt's, but that does not change what the constitution says.
ABear,
The Constitution deals with other entities besides the federal gov't - it deals with State powers, privileges of the people, the roll of the Militia, persons charged with crimes, the law of the land, etc. After the BOR was added, it also enumerated basic rights of the people, said a Militia was necessary, talked about bail, guaranteed due process, etc. - and not just in dealings with the federal gov't.
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I was suggesting that, just as the USBOR does not “empower” some superior agency with jurisdiction over the federal government, it would do likewise with the state governments, if they were covered. Thus intra-state constitutional questions would be handled by state courts, under the BOR standards (except for the 1A, which clearly limits only the federal Congress.) SCOTUS would not get involved unless/until there was a dispute regarding differing state rulings, much as they do with the Federal District Courts.
“of its powers” clearly refers to the Constitution, not the government, as does “its institution”; the phrases say nothing about the extent of its applicability.
“prevent misconstruction” and “insure beneficent ends” could easily refer to measures limiting the states, as well as the Federal government. That was Madison’s goal, after all.
frank23185
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This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
How hard is this to understand?
How hard is this to understand?
Hugh, I believe you are skipping over part of what the 10th says. Powers are reserved to the States and then to the people IF the constitution does not prohibit it to them. The 2nd clearly reserves a right for the People and therefore prohibits the States from infringing.
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."
The constitution Prohibits the States by reserving the right for the People. How could it be a right at all, and what would be the point of stating its existance if it was not being preserved... for the people if the States could ignore the right?, as only People can have rights.
yingyangdc, your own post does not support the argument. It just states your opinion about what you'd like something to mean.
Whatever you all seem to feel about this, the 14th Amendment was added to the Constitution because the courts did not hold that the restrictions on Federal power applied to State governments. Had they done so, the 14th would have been meaningless, or at least that section of it.
And again, the 14th Amendment should have cleared it up. Now these restrictions DO apply to the State governments.
Whatever you all seem to feel about this, the 14th Amendment was added to the Constitution because the courts did not hold that the restrictions on Federal power applied to State governments. Had they done so, the 14th would have been meaningless, or at least that section of it.
And again, the 14th Amendment should have cleared it up. Now these restrictions DO apply to the State governments.
coat4,
I believe what the original constitution specifically meant with "The powers prohibited to the states" were those as listed in A1/section 10, and a few in section 9.
And this is right in keeping with those added in the BOR, which is subjecting both the feds and the states to further prohibition of power. Madison originally proposed adding several of the BOR amendments to this section.
Hmmm...but Madison DID propose specific state restrictions too:
I believe what the original constitution specifically meant with "The powers prohibited to the states" were those as listed in A1/section 10, and a few in section 9.
And this is right in keeping with those added in the BOR, which is subjecting both the feds and the states to further prohibition of power. Madison originally proposed adding several of the BOR amendments to this section.
Hmmm...but Madison DID propose specific state restrictions too:
which may mean HE thought some of his proposals were meant for the feds only.
hugh damright
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First off, I question this narrow definition of what a "right" is. My Virginia BOR declares that government should have separate branches, which I see as a political right i.e. a principle of, or limit upon, government. I believe that a BOR is not an enumeration of personal rights as libertarians see it, but rather a political document which enumerates principles of, or limits upon, the government being framed.
Secondly, the point of the USBOR is to preserve rights against the federal government. That is the only government framed by the US Constitution. And these preserved rights in a federal system include States' rights. For example, Federalist #31 refers to the Union encroaching upon "the rights of the State governments", and Federalist #81 refers to "a pre-existing right of the State governments". Yet you say that only people can have rights, by which I assume you mean that only persons can have rights.
TwitchALot
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Excellent question.
"The Bill of Rights does not prohibit the State governments from doing anything at all, pre-14th."
This is correct. Now I'm not going to go through the posts and reply to all of them, but I will elaborate and pick a few.
Let me first start off with why the Bill of Rights, generally speaking, did not limit the states. The principle reason is because the Constitution would not have been passed in the first place!
The states were interested in restricting the power of the federal government. Yes, some Founding Fathers wanted the rights of the people to be protected from the federal and state governments. But had they argued that position and written it in the Constitution (well, Madison tried, IIRC), the Constitution would not have passed. The priority was to pass a Constitution that could solve the problems of the Articles of Confederation in such a way that the liberty and freedom of the people would not be infringed upon by government. In the eyes of the Founding Fathers, passing the Constitution was more important at the time than resolving all of the issues, like slavery. The North needed the South, and vice versa, and ruling on the issue of slavery, for example would have deadlocked the debate and prevented the passage of the Constitution.
This is the reasoning behind the 3/5 clause. Honestly, I don't believe that the majority of the Founding Fathers (the big ones, at least) were for slavery. The argument is that they owned slaves and so they approved of slavery. But some of the Founding Fathers saw it fit to release them at various points (typically on their death). Some, like Jefferson, noted that his conscious was bothered by slavery. Deep in debt, however, he did not release them until he died (they were used to pay for his debts). Along with other evidence, this is inconsistent with the theory that the Founding Fathers were pro-slavery. So why then, did they compromise on the issue? Why not try to get rid of slavery, if some of them were truly against it and believed it was wrong? The answer, again, is simple: To pass the Constitution. Slavery was an important issue during the debates, no doubt, but I think everyone knew that it would be solved sooner or later. And at the time, with the threat of the British, French, Spanish, and Native Americans, the lack of unification amongst the states, and a host of other reasons, later was a better time to solve the issue. In the interests of everyone involved, it wasn't unreasonable for the Founding Fathers to compromise on the issue of slavery, even if they truly believed it was wrong. So, long story short, the short answer is that the Founding Fathers believed that ratifying the Constitution, at the time, was more important than solving all of the issues (Shield, coat- that should answer your questions). It's not that the Founding Fathers didn't believe in restricting the ability of the states to restrict the rights of the people- it's just that it wasn't practical at the time. In other words, there was a reason for not applying the Bill of Rights to the states specifically, at that time. Moving on.
This is absolutely incorrect. The Constitution does have parts that specifically refer to the states and grant them certain powers (and limit others). That does not mean the Bill of Rights, as a whole, was meant to apply to the states. It didn't. It was tried, and it failed.
The Bill of Rights, in fact, was never even intended to be part of the Constitution itself. The Federalists argued that such a thing was not necessary, because it could be assumed that the federal government could not exceed the powers it was granted. The Anti-Federalists, along with several states, were not as optimistic. Long story short, it resulted in the Massachusetts's Compromise- it was in the very nature of the Anti-Federalists to be wary of government. But again, getting a Constitution ratified was the most important issue of the day. Other issues were secondary in nature. The 14th would later incorporate the Bill of Rights, so that issue is relatively pointless as far as this discussion is concerned.
Bear is correct in the matter. Honestly, most of this is not particularly arguable, unless someone claims that the history is somehow flawed. All of this can be learned in a US Government class (I think) and a detailed US History class. At least in my class, we were required to memorize all of the Amendments and some details about the rest of the Constitution, along with its history, the theories of John Locke and the others that the Founding Fathers drew from, Court cases, so on. For the most part, this is not a debate about opinion- it is a debate about facts.
"The Bill of Rights does not prohibit the State governments from doing anything at all, pre-14th."
This is correct. Now I'm not going to go through the posts and reply to all of them, but I will elaborate and pick a few.
Let me first start off with why the Bill of Rights, generally speaking, did not limit the states. The principle reason is because the Constitution would not have been passed in the first place!
The states were interested in restricting the power of the federal government. Yes, some Founding Fathers wanted the rights of the people to be protected from the federal and state governments. But had they argued that position and written it in the Constitution (well, Madison tried, IIRC), the Constitution would not have passed. The priority was to pass a Constitution that could solve the problems of the Articles of Confederation in such a way that the liberty and freedom of the people would not be infringed upon by government. In the eyes of the Founding Fathers, passing the Constitution was more important at the time than resolving all of the issues, like slavery. The North needed the South, and vice versa, and ruling on the issue of slavery, for example would have deadlocked the debate and prevented the passage of the Constitution.
This is the reasoning behind the 3/5 clause. Honestly, I don't believe that the majority of the Founding Fathers (the big ones, at least) were for slavery. The argument is that they owned slaves and so they approved of slavery. But some of the Founding Fathers saw it fit to release them at various points (typically on their death). Some, like Jefferson, noted that his conscious was bothered by slavery. Deep in debt, however, he did not release them until he died (they were used to pay for his debts). Along with other evidence, this is inconsistent with the theory that the Founding Fathers were pro-slavery. So why then, did they compromise on the issue? Why not try to get rid of slavery, if some of them were truly against it and believed it was wrong? The answer, again, is simple: To pass the Constitution. Slavery was an important issue during the debates, no doubt, but I think everyone knew that it would be solved sooner or later. And at the time, with the threat of the British, French, Spanish, and Native Americans, the lack of unification amongst the states, and a host of other reasons, later was a better time to solve the issue. In the interests of everyone involved, it wasn't unreasonable for the Founding Fathers to compromise on the issue of slavery, even if they truly believed it was wrong. So, long story short, the short answer is that the Founding Fathers believed that ratifying the Constitution, at the time, was more important than solving all of the issues (Shield, coat- that should answer your questions). It's not that the Founding Fathers didn't believe in restricting the ability of the states to restrict the rights of the people- it's just that it wasn't practical at the time. In other words, there was a reason for not applying the Bill of Rights to the states specifically, at that time. Moving on.
1X2 said:
This is absolutely incorrect. The Constitution does have parts that specifically refer to the states and grant them certain powers (and limit others). That does not mean the Bill of Rights, as a whole, was meant to apply to the states. It didn't. It was tried, and it failed.
The Bill of Rights, in fact, was never even intended to be part of the Constitution itself. The Federalists argued that such a thing was not necessary, because it could be assumed that the federal government could not exceed the powers it was granted. The Anti-Federalists, along with several states, were not as optimistic. Long story short, it resulted in the Massachusetts's Compromise- it was in the very nature of the Anti-Federalists to be wary of government. But again, getting a Constitution ratified was the most important issue of the day. Other issues were secondary in nature. The 14th would later incorporate the Bill of Rights, so that issue is relatively pointless as far as this discussion is concerned.
AB said:
Bear is correct in the matter. Honestly, most of this is not particularly arguable, unless someone claims that the history is somehow flawed. All of this can be learned in a US Government class (I think) and a detailed US History class. At least in my class, we were required to memorize all of the Amendments and some details about the rest of the Constitution, along with its history, the theories of John Locke and the others that the Founding Fathers drew from, Court cases, so on. For the most part, this is not a debate about opinion- it is a debate about facts.
hugh damright
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Exactly. Some of the posts assert theories that seem to be invented by persons with no sense of government or history or law.
Regarding government ... might we say that if the US were a wholly national government then the USBOR would be binding nationally, and if the US were wholly federal then the USBOR would protect the States rights against the US government? And might we then go on to say that the US is neither wholly federal nor wholly national, but rather a hybrid system? It seems like we might then be framing the question with a sense of government, with a sense of state/federal relationships in federal and national governments.
And regarding history ... is it fair to say that the States' primary concern in requesting the original amendments was that the US Constitution was creating a government that would grow to become wholly national? And might we then go on to question how a USBOR could limit the States unless by empowering the federal government with jurisdiction over "rights"? It seems like by framing the question with a sense of history and government, we might begin to ponder if jurisdiction over "rights" isn't too broad and general a power for a government limited to enumerated powers, and if such a jurisdiction wouldn't be sure to transform the US into a wholly national government. Which all begs the question ... if the States' concern was that the US would grow to become wholly national, why would they respond to this concern by delegating the US jurisdiction over "rights"?
And then there is the reconstruction era ... might we ask if the 14th "Amendment" wasn't intended to result in a US government that was wholly national, so that the New England region, with their numerical superiority, might take over? Since Jefferson said back in 1800 that the New England region is determined to turn the US into one big government which they might then control, and since that region, as soon as it achieved numerical superiority, amended the US Constitution by force with some intent of delegating the US jurisdiction over "rights" ... might we question if a desire to have the USBOR limit the States isn't really a desire to have a wholly national government?
gc70
Member
Okay; point to the precise language in the Constitution that explicitly says that the Second Amendment restrains the states (or the federal government, or both).
ReadyontheRight
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I am certainly NOT a legal scholar, but I truly believe that the framers (FOUNDING FATHERS) intended for each state to develop and live by its own rules.
If a person did not agree with specific laws of their state, that person could simply move to a state that lived by laws he agreed with. Or use the established processes to change the laws.
In today's world, many misguided people want some sort of "standard" Federal or International law about every aspect of our lives.
Laws never seem to go away, no matter how ridiculous.
The Founding Fathers knew this. It worked until they stopped teaching about the Founding Fathers in our schools.
If a person did not agree with specific laws of their state, that person could simply move to a state that lived by laws he agreed with. Or use the established processes to change the laws.
In today's world, many misguided people want some sort of "standard" Federal or International law about every aspect of our lives.
Laws never seem to go away, no matter how ridiculous.
The Founding Fathers knew this. It worked until they stopped teaching about the Founding Fathers in our schools.
Twitchalot,
No, you're absolutely incorrect.
The OP's question was "Did the framers intend..."
Notwithstanding trepidation at the time by the framers over the states' reluctance to being regulated, state constitutions already safeguarded these rights, and more. Nonetheless, the framers went ahead with the BoR. (Madison supposedly introduced an amendment that clearly stated that the amendments would apply to the states (it ended up on the cutting room floor). That's intent enough for me. That the states' understanding of what they were ratifying didn't jive with the framers doesn't mean that the intent wasn't there. It's agreed, I hope, by now, that the "rights" parts of it were declarations of rights that existed for men before the Constitution was drafted. What purpose would the 9th serve, otherwise? These people felt it innocuous enough to just let slide through? Not. The whole slavery issue is an exercise in U.S. law showing the difference between what is meant to be the law and what is judged to be the law, for a time.
I also cite the (otherwise unnecessary) 14th amendment.
1x2
No, you're absolutely incorrect.
The OP's question was "Did the framers intend..."
Notwithstanding trepidation at the time by the framers over the states' reluctance to being regulated, state constitutions already safeguarded these rights, and more. Nonetheless, the framers went ahead with the BoR. (Madison supposedly introduced an amendment that clearly stated that the amendments would apply to the states (it ended up on the cutting room floor). That's intent enough for me. That the states' understanding of what they were ratifying didn't jive with the framers doesn't mean that the intent wasn't there. It's agreed, I hope, by now, that the "rights" parts of it were declarations of rights that existed for men before the Constitution was drafted. What purpose would the 9th serve, otherwise? These people felt it innocuous enough to just let slide through? Not. The whole slavery issue is an exercise in U.S. law showing the difference between what is meant to be the law and what is judged to be the law, for a time.
I also cite the (otherwise unnecessary) 14th amendment.
1x2
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All Government is derived from the people. The 2nd in the BOR reserves the Right to keep and bear arms for the People. Can you honestly argue that any of the framers believed that any Government should have the authority to regulate the People’s Right to Keep and Bear Arms?
Arguing whether the Federal government or the State government has the power to regulate or take that Right is looking at the whole issue backwards.
The People kept the right.
Arguing whether the Federal government or the State government has the power to regulate or take that Right is looking at the whole issue backwards.
The People kept the right.
gc70,
I have done that quite a few times already. QUITE EXPLICITLY:
AND:
AND (BoR)
AND
This is VERY explicit wording about exactly what the scope of the constitution, and so the Bill of Rights, is. To think the founders ignored this language when promoting AND RATIFYING the BOR 2 years after the Constitution was accepted is pretty slim. It IS possible the initial intent of some was to limit the feds only, but THE RESULT, according to the explicit wording in the Constitution, is plain.
ANY state law which encroaches on a right protected /enumerated in the constitution, whether in the original document or the amended one, is in conflict with the Constitution and is NOT withstanding. State laws MUST yield to the Constitution, and so the BOR. That is what the people accepted as the law of the land.
I have done that quite a few times already. QUITE EXPLICITLY:
AND:
AND (BoR)
AND
... "and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
This is VERY explicit wording about exactly what the scope of the constitution, and so the Bill of Rights, is. To think the founders ignored this language when promoting AND RATIFYING the BOR 2 years after the Constitution was accepted is pretty slim. It IS possible the initial intent of some was to limit the feds only, but THE RESULT, according to the explicit wording in the Constitution, is plain.
ANY state law which encroaches on a right protected /enumerated in the constitution, whether in the original document or the amended one, is in conflict with the Constitution and is NOT withstanding. State laws MUST yield to the Constitution, and so the BOR. That is what the people accepted as the law of the land.
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