There is definitely truth in the history. The Bill of Rights originally limited only the federal government, and states did retain broad authority early on.
Where I am trying to understand the argument is how it fits with the Fourteenth Amendment. That amendment explicitly places limits on states, and the Supreme Court has interpreted “liberty” to include many of the rights in the Bill of Rights.
If incorporation is rejected entirely, would that mean states could also restrict things like speech, religion, press, or gun rights? Or is there a different way to distinguish which rights apply to states and which do not?
It’s clear you have a deeper understanding of this issue than I do, so I’d like further explanation if that’s ok.
Each state has a constitution as well. The Colorado state constitution stipulates:
- The free exercise and enjoyment of religious profession and worship, without discrimination, shall forever hereafter be guaranteed; and no person shall be denied any civil or political right, privilege or capacity, on account of his opinions concerning religion; but the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirmations, excuse acts of licentiousness or justify practices inconsistent with the good order, peace or safety of the state. No person shall be required to attend or support any ministry or place of worship, religious sect or denomination against his consent. Nor shall any preference be given by law to any religious denomination or mode of worship.
- No law shall be passed impairing the freedom of speech; every person shall be free to speak, write or publish whatever he will on any subject, being responsible for all abuse of that liberty; and in all suits and prosecutions for libel the truth thereof may be given in evidence, and the jury, under the direction of the court, shall determine the law and the fact.
So, what is the basis of a court overruling a decision made by a popularly elected branch (the legislature and executive)? What gives a court the right to overturn a popular decision? The Mecklenburg Instructions of 1776 explain:
1st. Political power is of two kinds,
one principal and superior, the other
derived and inferior.
2d. The principal
supreme power* is possessed by the people at large, the derived and inferior power by the servants which they employ.
3d. Whatever persons are delegated,
chosen, employed and intrusted
by the people are their
servants and
can possess only derived inferior power.
4th.
Whatever is constituted and ordained by
the principal supreme power can not be altered, suspended or abrogated by any other power, but
the same power that ordained may alter, suspend and abrogate
its own ordinances.
5th.
The rules whereby the inferior power is to be exercised
are to be constituted by the principal supreme power, and
can be altered, suspended and abrogated by
the same and no other.
6th.
No authority can exist or be exercised but what
shall appear to be ordained and created by
the principal supreme power or by derived inferior power which the principal supreme power hath authorized to create such authority.
7th. That the derived inferior power can by no
construction or pretence
assume or exercise a power to
subvert the principal supreme power
* Constitution-making
So what gives a court (unelected "servants of the people") the power to overrule an act of the legislature (a group of elected servants of the people)? Because the people, in their supreme constitution-making power, have decided to put into the Constitution their decision ("Congress shall make no law abridging freedom of speech.") so if Congress does pass an act abridging freedom of speech, the courts can point to the Constitution and say, "The people in their supreme constitution-making capacity, have decided against this." The Court cannot do it because the judges simply don't like the law, but because the people have already ruled on the matter and put their decision in the Constitution.
As for incorporation, nobody that I have read in 1867 said that the XIV Amendment would apply the BoR against the states. It is pretty obvious that Congress, when they drafted the XIV Amendment, were trying to secure the civil rights of freedmen (which they had just laid out in the Civil Rights Act of 1866, but which President Johnson had vetoed), so they went over the president's head and proposed a constitutional amendment. The "privileges and immunities" protected by the Civil Rights Act of 1866 were fairly straightforward: testify in court, serve on juries, file suits, own property, and generally be protected by the law without regard to skin color. If a state legislature passed an act saying black men could not file law suits simply because they are black, the XIV Amendment authorizes federal courts to overturn such a law.
Interestingly, Congress did
not include voting in the privileges and immunities protected by the XIV or they would not have ratified the XV Amendment. They would have simply said: "We've already done that with the XIV Amendment." Thus, the "privileges and immunities" and "equal protection" clauses were intended to be pretty narrowly interpreted. For a more detailed exploration, I would refer you to Raoul Berger's
Government by Judiciary.
For a federal court to overturn a law popularly adopted, they should have a
really firm basis for doing so and I do not think the federal judiciary, of which the Supreme Court of the United States is a part, had such a firm basis.
www.theguardian.com
www.thepinknews.com
www.kristv.com
