Bill of Rights (United States)
|We the People do ordain and establish this|
|Standards of review|
|Other legal theories|
|Defining moments in law|
“”The Bill of Rights of this country has ten stipulations, okay? Ten rights. And apparently God was doing sloppy work that week because we've had to amend the Bill of Rights an additional 17 times. So God forgot a couple of things. Like...SLAVERY! Just fuckin' slipped his mind.
|—George Carlin in his 2008 HBO Special It's Bad for Ya|
The United States Bill of Rights consists of the first ten amendments to the United States Constitution. These amendments spell out the rights of U.S. citizens that may not be infringed by their government.
Originally, these amendments limited the powers of the federal government and protected the rights of all citizens, residents and visitors on United States territory from abuses by the federal government, but not state and local governments. In other words, the Federal government couldn't deny a person rights found in the Bill of Rights, but the government of Alabama could - and did.
The arguments to have a Bill of Rights in the first place on the already-controversial (at the time) U.S. Constitution were already long, hard, and bloody. After all, it wasn't the Federalists, the ones that pushed for ratification of the Constitution, that demanded a Bill of Rights but the Anti-Federalists. The effort to have the Bill of Rights apply to state governments was as long, hard, and bloody, and exposed a hypocritical undercurrent to the "God-given" rights Americans of the era professed to cherish. This struggle is known as the "incorporation debate" and it continues in modern times, often when one hears a constitutional lawyer discuss the "original intent" of the founding fathers.
Throughout much of the twentieth century, opposition to incorporation of various and sometimes all of the Bill of Rights to the states were hallmark positions of conservative politicians, particularly in the southern United States. The Supreme Court cases that forced the Bill of Rights on the state governments were mostly delivered by the liberal Warren Court, under Chief Justice Earl Warren from 1953 to 1969. The Warren Court is still reviled by many conservatives today.
Americans notoriously have no idea where their rights come from, they just know somehow it goes back to the Constitution and the Bill of Rights. In reality, the rights we assume have been around for ages have only been around for about 50 years and were mostly won in the courts, such as the Earl Warren-led Supreme Court. There are still people alive who remember when Connecticut could arrest a husband and wife for using a condom (although a husband could still legally rape his wife in New York state until 1984).
Sounds crazy, right? That the government could decide what you and your partner could wear before you schtup together? Well if you think such a crazy issue is all settled in modern America, you would be wrong. In 2003, Senator Rick Santorum (R-PA) expressed why conservatives still hate all these rights that came about:
[I]f the Supreme Court says that you have the right to consensual sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything. Does that undermine the fabric of our society? I would argue yes, it does.
In 2010, Kentucky Republican Senate candidate (and Teabagger) Rand "Son of Ron" Paul was asked by Rachel Maddow, "Do you think that a private business has the right to say 'we don't serve black people'?" and he flatly responded, "Yes." Sarah Palin-endorsed Paul criticized the 1964 Civil Rights Act because desegregation and all those rights infringed upon the "freedom of speech" of racists:
I think what's important about this debate is not written into any specific 'gotcha' on this, but asking the question: What about freedom of speech? Should we limit speech from people we find abhorrent? Should we limit racists from speaking? . . . I don't want to be associated with those people, but I also don't want to limit their speech in any way in the sense that we tolerate boorish and uncivilized behavior because that's one of the things freedom requires.
The 1964 Act was one of the efforts of the executive and legislative branches to force the Bill of Rights on the mob rule state governments who were allowing awful things to happen under the guise of 'As much freedom [for whites] as possible'.
That truly is the crux of the argument: whose rights matter more? "Laws often represent a balance between contending rights," wrote Michael Gerson in the Washington Post. "As a libertarian, Paul believes that property rights are more important than the right not to be humiliated because of your race in front of your children."
The incorporation debate rages on, even though most Americans think such debates are settled (except gay people, who are still waiting for some of them).
Feds v. States
The Bill of Rights originally was all about the federal government - that the dopes in Washington D.C. couldn't force you to house filthy, rude soldiers like the British did, that the police couldn't unreasonably search and seize your property, and so on.
But that's the federal government, not the states. In the early days of the Republic, the Bill of Rights was deemed to not apply to state governments. They could write their own Constitutions, interpret their own standards of rights, and more-or-less treat their people how they wanted. And they did.
American Civil War
In the 1860s, treasonous southerners attacked the country so they could keep their slavery-based economy, in the end losing a horrible, bloody war. It dawned on more than a few Americans that their Bill of Rights was pretty meaningless when racist state governments were allowed to create their own human hells for blacks and other people deemed unworthy of those rights. So in 1868, the country changed the Constitution and adopted the 14th Amendment, which attempted to "incorporate," or apply, the entire Bill of Rights against the states - meaning that states couldn't do evil shit anymore. Not five years later, however, the Supreme Court declared that contrary to the intentions of the framers of the Fourteenth Amendment, the Bill of Rights did not apply to the states in its entirety. Seriously, it's not as if the framers were long dead - most of them were basically right across the street. The "Slaughter-House Cases", which rendered the "Privileges and Immunities Clause" of the Fourteenth Amendment effectively meaningless, still stand as legal precedent today.
Welcome to the new America, same as the old America
And then nothing changed for a century.
For the next 100 years or so, the country, particularly the south, had lynchings, segregation, the Ku Klux Klan, voter fraud and the Jim Crow era. Cases were denied, people who questioned the system were murdered, and many blacks lost their rights to vote so they faced politicians who were unsympathetic, even hostile to their needs. Politicians like Strom Thurmond were plentiful and proud, defiant defenders of the idea that blacks didn't deserve the same rights, which was some of the worst shit in America's history.
States were getting more brazen in trampling Constitutional rights, and the courts started to listen. Slowly, very slowly, federal court cases up to the Supreme Court, and the decisions started to force the states to follow the Bill of Rights by applying the due process clause of the 14th Amendment. The states fought back, and only went down kicking and screaming.
The process sped up drastically under Chief Justice Earl Warren, whose court was largely responsible for making sure the states stop taking your stuff, throwing you in jail for stupid reasons, and getting involved in your love life. Only fifty years ago (1960, as of this writing) that was still happening all the time, and it still does.
Because the Warren Court was so active in interpreting and enforcing the 14th Amendment, many modern conservatives consider it one of the most liberal "activist" courts and they hate it.
The arguments, generally
Generally, conservatives argued for states rights by saying that the Bill of Rights was only meant to curtail the power of the federal government. Liberals argued that the principle that "[w]e hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights" is an unequivocal statement that does not only apply to the federal government.
For instance, it has only been since 1958 that states can't mess with people's freedom to associate with whomever they want to advance their beliefs and ideas. That was the year this right was legally decided after Alabama tried to kick the NAACP out of the state for the legal reason "we don't want them coloreds gettin' uppity on us." The state tried to confiscate the bank records, leases, and membership lists of the the black civil rights organization, prosecuted it, and held it in contempt for not releasing the records. The NAACP sued, and the case ended up at the Supreme Court, where Alabama lost. Before then, Alabama thought they had every right to do what they were doing, and the Alabama Supreme Court even "overturned" one of the U.S. Supreme Court's rulings.
Mostly because there are very few scenarios where states would have an opportunity to violate certain rights, some parts of the Bill of Rights have never been ruled to apply to the state governments. These include, amongst others:
- The 3rd amendment (freedom from quartering of soldiers)
- The 5th (right to indictment by a grand jury)
- The 7th (right to a jury trial in civil cases)
- And the 8th (protections against "excessive" bail and "excessive" fines).
There are some people who treat these ten amendments as having a similar level of holiness to the similarly named Ten Commandments. Of course, they have their own special interpretation of both amendments and commandments, so they simply think both support whatever their agenda is.
- Or as George Carlin calls it, A Bill of Temporary Privileges.
- National Association for the Advancement of Colored People v. Alabama, 357 U.S. 449
- While we don't have an actual source for this quote, well... yeah. Visit Alabama today and it won't be hard to imagine (or hear) a source for similar.
- 190,000 guns