Lesson 1.6 · Unit 1 · CA HSS 12.1.6
How the first ten amendments came to limit the states too
The Bill of Rights was written to restrain the federal government and originally did nothing to the states. Understanding how it came to bind them as well is the single most consequential piece of constitutional history in this course.
- The Bill of Rights is the first ten amendments, ratified in 1791 as the price of ratification demanded by the states.
- Its form is prohibitory, stating what government may not do rather than what citizens may do, which is why the First Amendment begins "Congress shall make no law".
- The Federalists initially opposed it, arguing that listing rights was unnecessary under a government of enumerated powers and dangerous because omission might imply denial.
- The Ninth Amendment answers that objection by stating that listing some rights shall not be construed to deny others retained by the people.
- The Tenth Amendment reserves to the states or the people all powers not delegated to the federal government.
- Barron v. Baltimore in 1833 held that the Bill of Rights restrained only the federal government, so a state could do what the federal government could not.
- The Fourteenth Amendment of 1868 forbids any state to deprive a person of life, liberty or property without due process of law, or to deny equal protection of the laws.
- Selective incorporation is the doctrine by which the Supreme Court has applied most of the Bill of Rights to the states one provision at a time, through the Fourteenth Amendment's due process clause.
Where students lose marks: saying the Bill of Rights always applied to the states. It did not until incorporation, which began in the twentieth century and is still not complete.
The sources. The Bill of Rights, 1791, and Amendment XIV, section 1, 1868. Both public domain.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
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.
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Step one: read the First Amendment's opening word. Congress. Not government, not the states, not any legislature: Congress. On its face the provision restrains one institution, and for the first century and a half that is exactly how it was read.
Step two: work out the consequence. A state could establish an official church, and several did into the 1830s. A state could restrict the press. The federal Constitution said nothing about it, and a citizen's protection against their own state came only from the state constitution.
Step three: understand the Federalist objection to a bill of rights. Their argument was that the federal government holds only enumerated powers, so it has no power over religion or the press to begin with, and listing protections implies that without the list the power would exist. Listing some rights might also suggest that unlisted ones do not exist.
Step four: see how the Ninth Amendment answers it. It states directly that enumerating some rights shall not be construed to deny others retained by the people. The objection was met by writing the answer into the text, which is why the Ninth reads like a rule of interpretation rather than a right.
Step five: read the Fourteenth Amendment's opening word. State. The grammar is the mirror image of the First Amendment: where the First restrains Congress, the Fourteenth restrains the states, and it does so in the general language of due process and equal protection.
Step six: state the interpretive question that opened. Does "liberty" in the Fourteenth Amendment's due process clause include the liberties listed in the Bill of Rights? If it does, then a state abridging free speech deprives a person of liberty without due process, and the First Amendment reaches the states through the Fourteenth.
Step seven: describe how the Court answered. Not all at once. It proceeded one provision at a time across the twentieth century, asking of each whether it is fundamental to ordered liberty, and applying those that are. That is selective incorporation, and most of the Bill of Rights is now incorporated while a few provisions, such as the Third Amendment and the grand jury requirement, are not.
Step eight: state why this matters more than any other doctrine here. Almost every rights case a student will encounter is a case against a state or a city, not against the federal government. School prayer, police searches, protest permits and criminal procedure are overwhelmingly state and local matters. Without incorporation the federal Constitution would have almost nothing to say about any of them.
Questions 1 to 5 are recall. Questions 6 to 10 ask for reasoning.
- What is the Bill of Rights and when was it ratified?
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The first ten amendments, ratified in 1791
- What does the Ninth Amendment say?
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That listing some rights shall not be construed to deny others retained by the people
- What does the Tenth Amendment reserve?
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All powers not delegated to the United States nor prohibited to the states, to the states or the people
- What did Barron v. Baltimore hold?
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That the Bill of Rights restrained only the federal government, not the states
- Define selective incorporation.
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Applying the Bill of Rights to the states one provision at a time through the Fourteenth Amendment's due process clause
- What does the First Amendment's opening word establish, and what followed from it?
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It says Congress, not government and not the states, so on its face it restrains a single institution, and for the first century and a half it was read exactly that way. The consequence was that a state could establish an official church, and several did into the 1830s, and a state could restrict the press. A citizen's protection against their own state came only from their state constitution, not from the federal one. It restrains only Congress, so states could establish churches and restrict the press
- Explain the Federalist argument against having a bill of rights.
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They argued it was unnecessary and dangerous. Unnecessary because the federal government possesses only enumerated powers and was never given any power over religion or the press, so there was nothing to prohibit. Dangerous because listing protections implies that without the list the power would have existed, and because enumerating some rights might suggest that rights left off the list do not exist at all. Both objections are about the logic of enumeration. Unnecessary under enumerated powers, and listing some rights might imply others were denied
- How does the Ninth Amendment answer that objection?
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By writing the answer directly into the text: the enumeration of certain rights shall not be construed to deny or disparage others retained by the people. That addresses the second Federalist objection precisely, which is why the Ninth Amendment reads like a rule of interpretation rather than a grant of any particular right. It instructs future readers how to handle the list rather than adding to it. It is a rule of interpretation forbidding the inference that unlisted rights do not exist
- State the interpretive question the Fourteenth Amendment opened.
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Whether "liberty" in its due process clause includes the liberties listed in the Bill of Rights. If it does, then a state that abridges freedom of speech has deprived a person of liberty without due process of law, and the First Amendment reaches the states indirectly through the Fourteenth. The Fourteenth's grammar is the mirror image of the First: where one restrains Congress, the other restrains the states, in general language a court must fill in. Whether the Fourteenth's "liberty" contains the Bill of Rights' liberties
- Why does incorporation matter more than any other doctrine in this unit?
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Because almost every rights case a student will encounter is against a state or a city rather than the federal government. School prayer, police searches, protest permits, criminal procedure and free expression in public places are overwhelmingly state and local matters. Without incorporation the federal Constitution would have almost nothing to say about any of them, and the Bill of Rights would protect citizens only against a government most of them rarely encounter directly. Most rights disputes are with state and local government, which the Bill of Rights did not originally reach