Which Government Does the U.S. Bill of Rights Limit?

To answer this question, we must start by determining who ratified the U.S. Constitution.  Was it ratified by individuals or by the states?

The first answer can be found in Article VII of the U.S. Constitution itself (emphasis added in all quotations):

The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same.

The second answer can be found in the journal of the convention, which records only the votes of the states.  Once more, it was the states (not individual delegates) that cast the votes in the convention.  Additionally, each state specified what portion of its delegation needed to be present to act and cast the states' vote.

It is also critically important to understand the structure and construction of the U.S. Constitution before attempting to read and interpret it.  So what was the purpose of drafting and ratifying the U.S. Constitution?  Very simply, the purpose was to define and limit the authority of the federal government.  As Madison specified in Federalist 45:

The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

Further, Article VI, Section 2 of the U.S. Constitution specifies that the authority delegated to the federal government is supreme:

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.

But while the U.S. Constitution and laws made in pursuance thereof are the supreme law of the land, this is entirely different from the federal government being supreme in everything it does.

To be sure that the federal government's authority was limited to the powers enumerated within the U.S. Constitution, many states' ratification was contingent upon amendments being passed, including what became the 10th Amendment (which Jefferson considered the "foundation" of the Constitution):

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 ultimate check on federal power by a state can be uncovered via a quick read of the state ratifying resolutions (e.g., Virginia, New York, Rhode Island).  These resolutions illustrate the fundamental right of rescission (i.e., powers delegated to the federal government can be reassumed).  Take the NY ratification resolution for example:

That the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness; that every power, jurisdiction, and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the government thereof, remains to the people of the several states, or to their respective state governments, to whom they may have granted the same[.]

Let's review:

  • The U.S. Constitution is a compact among the states.
  • The limited authority delegated to the federal government is enumerated in the U.S. Constitution.
  • The states created the federal government to be an agent of the states to carry out limited powers.
  • The states have the legal authority to reassume powers delegated to the federal government.

After reflecting on all of these rather clear-cut facts, one must ask: why would the states create an agent (i.e., the federal government) to limit the states' power?

An objective person must come to the obvious conclusion that the states did no such a thing -- especially after that same person reads the beginning of the almost-forgotten Preamble to the Bill of Rights:

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 ensure the beneficent ends of its institution.

Regardless of if one thinks that it is a good measure to have the federal government policing the states for any signs of them infringing on the states citizens' inalienable rights (federalism, anyone?), the fact remains that the Bill of Rights was drafted to further clarify limitations on the federal government, not limitations on the states.

Wait...did I just hear someone ask about the "Incorporation Doctrine?"

Joshua is the co-host of the Forgotten Men radio show, which airs Saturdays at 12 noon ET on AM930 WFMD.  The Forgotten Men focus on the current political and economic challenges through the lens of the Constitution and federalism.