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Happy Bill of Rights Day!

Today is Bill of Rights Day. The Cato Institute's Tim Lynch celebrates here.

Cornellian (mail):
I knew the BoR was ratified in 1791, but I didn't know it was on December 15.

So happy 206th anniversary, Bill of Rights!
12.15.2007 5:21pm
Thoughtful (mail):
Well, after reading Tim's fine summary, it seems more reasonable, rather than celebrating the birthday of the Bill of Rights, to try and discern from historians which is the best day on which to commemorate the anniversary of its passing...
12.15.2007 5:38pm
Mike Gallo (mail):
To celebrate here in Wisconsin, I shoveled my snow with my .45 displayed proudly on my hip, and spoke my thoughts proudly on blogs across the nation!
12.15.2007 6:00pm
BruceM (mail) (www):
If the BoR were up for vote today, it would overwhelmingly be rejected as pro-criminal, anti-children hogwash. The only thing worth celebrating are the last remnants of the BoR which have not yet been revoked or nullified by "exception" by the Supreme Court.

The only thing that truly remains in force is no quartering of troops in homes. Woohoo. And that's only because the government's never had a reason to try it. Surely the SCOTUS would create an "exigent circumstances" exception to the 3rd Amendment to allow quartering of troops... don't doubt it for a second.
12.15.2007 6:06pm
Elliot Reed (mail):
If the BoR were up for vote today, it would overwhelmingly be rejected as pro-criminal, anti-children hogwash.
Well, maybe we could get some of it through by exempting anyone who's ever been within fifteen feet of a terrorist or sex offender . . .
12.15.2007 6:16pm
glangston (mail):
It's tough to understand the logic that these rights were guaranteed to citizens by a Constitution, approved of by all the states in convention and yet the individual states did not have to observe these rights when writing legislation until the 14th Amendment came along. Was it really the understanding that States were allowed to modify rights or was it just a flaw that developed as history marched on.

How would Congress vote to allow statehood if these same rights were not included in each state's constitution...verbataim.?
12.15.2007 7:35pm
Steve:
Notions of federal supremacy were much, much different back then.
12.15.2007 7:55pm
Visitor Again:
knew the BoR was ratified in 1791, but I didn't know it was on December 15.

So happy 206th anniversary, Bill of Rights!


You need to use a calculator.
12.15.2007 8:00pm
BruceM (mail) (www):
glangston: I've never understood it, either. How could the Framers write a constitution that allowed for two governments and put limits on only one of them? Unless the Bill of Rights applies to both Congress and the states (implicity) it is utterly meaningless. If the states can make laws barring free speech, establishing religion, preventing the free exercise of religion, banning the possession of firearms, denying due process and equal protection, etc., the same restrictions on the federal government are meaningless. Especially if the federal government can just say "hey states, if you want your annual $40,000,000 highway money, you need to pass a law establishing Christianity as the official state religion (since we, Congress, cannot pass such a law and you can)."

I think it was always intended for the bill of rights to apply to the states, and that it only refers to "Congress" is merely inartful drafting. Any other interpretation renders the BoR meaningless. The whole "incorporation" debate, as to some amendments and parts of amendments being incorporated to the states through the 14th and some not being incorporated through the 14th (like the right to a grand jury indictment) has always been, in my humble opinion, the most asinine subject of ConLaw.
12.15.2007 8:55pm
theobromophile (www):

I think it was always intended for the bill of rights to apply to the states, and that it only refers to "Congress" is merely inartful drafting. Any other interpretation renders the BoR meaningless. The whole "incorporation" debate, as to some amendments and parts of amendments being incorporated to the states through the 14th and some not being incorporated through the 14th (like the right to a grand jury indictment) has always been, in my humble opinion, the most asinine subject of ConLaw.

Well, you can argue that the Fourteenth was never designed to incorporate the Bill of Rights against the states, and the whole system makes a bit more sense.

States developed their own Bills of Rights before and after the ratification, which indicates that they never saw the Constitution as binding upon them. Considering that many states had established religions, it seems as if the citizens would never have passed the First Amendment.

Furthermore, the Constitution does limit the ability of states to act (and not just by negative implication): consider Art. I, Sec. 10 (prohibitions on, inter alia, entering treaties, coining money, levying import taxes, keep troops, engage in war). (Obviously, when the Constitution discusses limitations on Congress or the rest of the federal government, it does so in general language - i.e. "No Bill of Attainder or ex post facto Law shall be passed," Art I Sec. 9, and specific language when dealing with the states, i.e. "No State shall... pass any Bill of Attainter, ex post facto Law...." Ergo, the reasons for construing the Bill of Rights as applying only on the states.)

The Bill of Rights does make sense when binding upon a federal goverment and not the states; IMHO, it makes more sense. As written, there is no reason why there should be any ban on speech to prevent imminent danger; however, states, which protect the health, safety, and welfare of their citizens, could so regulate.

If you don't happen to like your particular state, you can petition to change the laws or to move. It's much harder to leave one's country.

Two points about the Courts. VII provides that "no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of common law." It is logically senseless for that to be binding upon the states when the states explictly had their own court systems. ("Court of the United States," unless I am wildly mistaken, = Art. III court. If I'm wrong, someone please correct me before I take my federal jx final on Monday.) Finally, if the Bill of Rights were binding on the states, how would that be litigated in a post-XI Amendment world?

The Spending Clause nonsense came along long after the ratification of the Bill of Rights. IIRC, it really came into effect post-XVI and XVII Amendments.
12.15.2007 9:20pm
Cornellian (mail):
Two points about the Courts. VII provides that "no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of common law." It is logically senseless for that to be binding upon the states when the states explictly had their own court systems. ("Court of the United States," unless I am wildly mistaken, = Art. III court. If I'm wrong, someone please correct me before I take my federal jx final on Monday.)

It's not logically senseless - such a position would be mistaken, but hardly senseless. Fortunately, that mistake has not been made. "Court of the United States" does indeed refer to Article III federal courts, and the Seventh Amendment (jury trials in civil cases) has been held not to apply to state courts. Many states do, of course, have similar trial by jury guarantees in their state constitutions.
12.15.2007 9:55pm
byomtov (mail):
I agree with glangston and BruceM. If the notion that the BofR was intended to protect certain individual rights against majoritarian rule is correct, then it is hard to see why it wouldn't apply to the states from the beginning.

This is even more the case when we consider that it was much harder to move from one state to another in the 18th century than it is today.
12.15.2007 10:05pm
Oren:

I agree with glangston and BruceM. If the notion that the BofR was intended to protect certain individual rights against majoritarian rule is correct, then it is hard to see why it wouldn't apply to the states from the beginning.


The idea was that the state government is closer to the people and therefore more expressive of their will. Consequently, one did not need protection from one's state (or, such a protection would come in the form of state constitutional provisions) in a Federal document but rather only protection from the citizens of other states.
12.15.2007 10:13pm
theobromophile (www):

It's not logically senseless - such a position would be mistaken, but hardly senseless. Fortunately, that mistake has not been made. "Court of the United States" does indeed refer to Article III federal courts, and the Seventh Amendment (jury trials in civil cases) has been held not to apply to state courts. Many states do, of course, have similar trial by jury guarantees in their state constitutions.

Um, we're talking past each other, at best.

Bruce said: the Bill of Rights should have originally applied to the states as well.

Me: That doesn't make sense; look at the language (inter alia, the Seventh Amendment).

You: The Seventh Amendment hasn't been incorporated.

I really think we are talking past each other. There's no principled reason for the Bill of Rights to be binding upon the states as of 1791 (which Bruce suggested), but have that one lone exception (jury trials) which are not binding on the states. (Incorporation has not proceeded cleanly; it started, IIRC, in 1925, and various provisions have been incorporated since then. The Second Amendment has not been incorporated, IIRC, because the issue has not come before the Supreme Court since the 1870s. Incorporation via the XIV happens as the litigation comes before the Court, not on any principled timeline.)

Here's the two scenarios:
1) the Bill of Rights was not designed, when ratified in 1791, to be binding against the states. Simple, universal, principled, and comports with the internal language of the Constitution.
2) The Bill of Rights has been binding upon the states (or was intended to be binding upon the states) in 1791. One of the problems with this interpretation is the language in Art. VII, which renders that one clause not binding upon the states. Linguistically, it is one of the reasons why such an interpretation does not make sense.
12.15.2007 10:32pm
BruceM (mail) (www):
I'm not so sure that the 7th Amendment wasn't intended to apply to the states as well. "Courts of the United States" doesn't necessarily mean article III courts. It can mean federal courts and state courts. It's a court located in the United States. They could have said Article III court if they meant it to only apply to federal and not state courts. But the same goes for the first Amendment that talks about "Congress shall make no law..." which I also contend was just inartfully drafted and meant state congresses too.

Preventing the federal government from raping me while allowing state governments to rape me provides no protection for my anus.
12.15.2007 11:10pm
theobromophile (www):
1. Should you assume inartful drafting instead of the original meaning of the words? That theory renders the entire document virtually meaningless. Shouldn't we assume that people meant what they said?

2. Check out the 11th Amendment. The "Judicial power of the United States" clearly means the federal courts, as those words are echoed in Art. III, Sec. 1 (first words, actually). Moving onwards: Art. III tells us that this "Judicial power" shall be invested in one Supreme Court and any lower courts that Congress may design (this is the Madisonian compromise; the question was whether to have one Supreme Court that would hear federal cases, or whether there should also be inferiour tribunals). These are the "Courts of the United States," as this is where judicial power of the United States has been invested. Ergo, the Seventh Amendment only applies against the federal government.

3. The language of Art. I, Sec. 9 (clearly meant only as a prohibition against the federal gov't; contrast Art. I, Sec. 10, which binds only the states), Amendments II-VIII, and miscelleneous clauses in the Constitution all use general language to indicate when the federal government will be bound. When a state or a specific branch is implicated, such is named explicitly. You have to look at the document as a whole and understand its structure.

4. The purpose of the Constitution is not to protect your nether regions. Neither is it to exalt every right that you may desire or have; it is to set up a two-part system of govenrment (state and federal);

5. The Constitution uses "the United States" as something functionally different from the sum of all of the states and commonwealths; the federal government is "the United States," and the state governments are "the States." See, for example, Art. VI: "...and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land...." We know from Art. I, Sec. 10 that states can't make treaties. How does it make sense, then, for "United States" to mean the group of the several states?

The construction you are giving to the Constitution requires that "United States" equate to both the federal government and the total of the states, while "States" equates to the latter, and nothing equates to the former. Well, I guess if you take that perspective, it IS sloppy drafting. ;) Thing is, if you look at the entire document, you see that the Framers were their own lexicographers; they used words like "the United States" to refer only to the federal government, and used language without a subject for reference to the rights and powers thereby.

Again, I don't buy "sloppy drafting." This isn't a Congressional statute or a city ordinance about zoning*; it was a document drafted, re-drafted, edited, and rewritten by people who expected that it would have to endure the highest scrutiny.


*Even if it were, the rules of construction still apply; it's much easier - and more principled - to determine what something does (or did) mean that what you think the person writing it meant for it to mean.

Anyone else want to help out?
12.16.2007 12:26am
glangston (mail):
It seems that Washington D.C. was the only area in the US that you could say for sure that this Bill of Rights was secure.

It may not be sloppy drafting, but it surely seems pusillanimous.
12.16.2007 2:02am
Cornellian (mail):
1) the Bill of Rights was not designed, when ratified in 1791, to be binding against the states. Simple, universal, principled, and comports with the internal language of the Constitution.

And also correct.

2) The Bill of Rights has been binding upon the states (or was intended to be binding upon the states) in 1791. One of the problems with this interpretation is the language in Art. VII, which renders that one clause not binding upon the states. Linguistically, it is one of the reasons why such an interpretation does not make sense.

I don't see why this should be a problem. Even if one reads the 7th Amendment that way, they could have just intended everything except the 7th to apply to the states. If anything the 1st Amendment is a much bigger issue, since it explicitly applies to Congress. Anyway, I think it's all moot since the Bill of Rights in 1791 was not intended to apply to the states. The 14th Amendment did that, more or less.
12.16.2007 3:57am
BruceM (mail) (www):
theobromophile: how about, it was meant to be binding on the states except in those cases where the subject matter, internal logic, and the wording both clearly indicate otherwise. When the "original meaning" is debatable, inartful (or lazy) drafting is the most logical explanation.

"4. The purpose of the Constitution is not to protect your nether regions. Neither is it to exalt every right that you may desire or have; it is to set up a two-part system of govenrment (state and federal)."

We're not talking about Constitution Day, we're talking about Bill of Rights day. And the Bill of Rights does, or at least was intended to, protect the nether regions of We The People from government ass-raping, that is, it was intended to be a permanent shield over the ass of each and every American citizen by limiting the power of government. Clearly, I use anal rape as a metaphor for abuse of power and violation of rights by the government (federal or state). Again, it makes no sense to say one government can't rape me but the other can.

As for your arguments about construction and meaning of "the United States" in the Constitution, I am only talking about the Bill of Rights. We can have another argument on Constitution Day, though I'm not sure upon what precisely we'd disagree.
12.16.2007 7:22am
PersonFromPorlock:
I suspect that if the BOR was meant to apply to the states, someone would have mentioned it at the time. IIRC, nobody told Massachusetts that having an established church was, post 1791, a no-no.

As for the inconsistency of the states placing restrictions on the federal government that they didn't place on themselves, well, yes.
12.16.2007 9:05am
CEB:

Considering that many states had established religions, it seems as if the citizens would never have passed the First Amendment.

I thought the whole point of the Establishment Clause was to allow states to have established religions without interference from the Federal government. I know that's considered a crackpot position now, but looking at the context and the actual wording, it's blatantly obvious that that's what it meant.
12.16.2007 10:20am
common sense (www):
Interestingly enough, the sedition laws were objected to under a lack of power issue, specifically no article 1 power for federal government to regulate press. The first amendment was not used. Many of the objectors of the federal sedition acts supported sedition acts at the state level, and encouraged their use. So, just because we with our current world view cannot fathom why the government is arranged the way it is, that was the intent. Also, those who opposed the BoR appeared to be correct. The affirmative protection of rights was used as justification of the federal government getting involved in every matter that isn't mentioned, instead of staying within its enumerated bounds.
12.16.2007 11:22am
PersonFromPorlock:

I know that's considered a crackpot position now....

It's hard to say what the "thereof" in "the free exercise thereof" refers back to if it's not "an establishment of religion," but as you say it's a [minority] position now. I do like to trot it out when somebody mentions the 'militia' interpretation of the Second Amendment, though, by way of agreeing with them and watching them sputter.
12.16.2007 11:23am
Andrew Grossman (mail):
My Heritage Foundation colleague has some thoughts and historical background on the purpose of the Bill of Rights and the meaning of the holiday here.
12.16.2007 12:12pm
byomtov (mail):
The idea was that the state government is closer to the people and therefore more expressive of their will. Consequently, one did not need protection from one's state (or, such a protection would come in the form of state constitutional provisions) in a Federal document but rather only protection from the citizens of other states.

So the idea was that it was OK for an individual state to outlaw Roman Catholicism, say, but not for the federal government to do so?

I'm not arguing actual interpretation, here, etc., as much as wondering how to make sense of that. It's not much of a guarantee of religious freedom. Does it really fit with the views of the founders? Was it their view that the value of federalism outweighed the importance of guaranteeing religious freedom?
12.16.2007 12:36pm
GV:
I thought the whole point of the Establishment Clause was to allow states to have established religions without interference from the Federal government. I know that's considered a crackpot position now, but looking at the context and the actual wording, it's blatantly obvious that that's what it meant.
You likely think this because this is Justice Thomas's position. Sadly for Justice Thomas, and for you, it has no historical support.

No one was making this argument regarding the Establishment Clause at the time of the founding. Federal power was, of course, understood to be quite limited at the time of the founding and it was hard to find a federal power that would allow the federal government to infringe on a state's establishment. Indeed, think back to the anti-federalist writings, which were a series of "the sky will fall if you pass the constitution because these awful things will happen." Even they never suggested that the federal government would start banning state establishments. In fact, the principle benefactors of the argument that the federal Establishment Clause was intended to protect state establishments was Connecticut and Massachusetts, who both had state establishments. But both refused to ratify the First Amendment; indeed, Massachusetts did not ratify it until 1939.

The New England establishments were controversial in those states, but nobody else cared. And even the elite in establishment states did not take the dissenters seriously; they said it was a very mild establishment compared to historical establishments.

Justice Thomas has never responded to any of this, despite the fact that parties have made these arguments to combat his ahistroical view of the Establishment Clause. Surprise, surprise.
12.16.2007 12:47pm
CEB:
GV,

Maybe I was overstating when I said it was the "whole point." However, the First Amendment was certainly not meant to (or at least didn't) prevent states from having an established church, since states continued to have established churches.

What sort of "law respecting an establishment of religion" were the founders afraid Congress might make, then? As I see it, there could only be two: forbidding the states from having established religions or establishing a federal religion. Either way, it seems that the only motivation could be to retain the state's rights to establish religions.
12.16.2007 1:09pm
Oren:

So the idea was that it was OK for an individual state to outlaw Roman Catholicism, say, but not for the federal government to do so?

Yes.
12.16.2007 1:32pm
Jonathan H. Adler (mail) (www):
To understand the reason why the Bill of Rights, as originally proposed and adopted, only applied to the federal government, one has to recall the context in which they were proposed and adopted. At the time, existing state constitutions had bills of rights that limited the power of the respective state governments. When the Constitution was proposed, the anti-Federalists were concerned that the it did not contain a Bill of Rights that would protect individuals (and states, to some extent) from the federal government. The purpose of adopting the Bill of Rights was to impose the same sorts of limits on the federal government that already existed on the state governments. In effect, they were arguing "we've limited our state governments with bills of rights; it is important that we limit this new, stronger federal government in the same fashion." So, what they wanted (and got) was an assurance that certain rights would be protected as against the federal government.

Understood in this light, I think that the idea that the Bill of Rights would only apply to the federal government makes sense (in that it is consistent with the intent of those that sought and ratified it). Whether this approach was sufficient to protect individual liberty is another matter, however. As time went on it became clear that state bills of rights and competitive federalism were insufficient in this regard, and the 14th Amendment was adopted, in large part, to provide greater federal protection for individual rights as against state governments. Whether this requires the incorporation of some or all of the Bill of Rights as against the states (or entails the protection of some other set of rights and liberties) is a continuing subject of academic debate.

JHA
12.16.2007 1:43pm
Cornellian (mail):
Prof Adler is completely correct in his explanation of why the Bill of Rights was originally intended to apply only to the federal government (not state governments) and that the 14th Amendment applied some of the Bill of Rights to state governments as well (exactly how much of the Bill of Rights is the subject of endless debate).
12.16.2007 1:58pm
Cornellian (mail):
Also, those who opposed the BoR appeared to be correct. The affirmative protection of rights was used as justification of the federal government getting involved in every matter that isn't mentioned, instead of staying within its enumerated bounds.

About 95% of the constitutional reasoning that tries to justify having the federal government as the overweening leviathan (vis a vis state governments) that we have today depends on the Commerce Clause, not the Bill of Rights.
12.16.2007 2:00pm
GV:
CEB, it was meant to restrain the federal government from passing any federal law respecting an establishment of religion. Note that the clause not only forbids establishing a religion, but laws respecting (i.e., having a tendency to) establish a federal religion.

It had nothing to do with the states, which could clearly do whatever they wanted with respect to religion.
12.16.2007 2:01pm
CEB:
GV,

I think we're talking past each other a bit. My main complaint is with people who ignore the fact that "establishment of religion" has an actual legal meaning, and treat it as though it's a generic phrase meaning "endorsement" or "support" of religion. The position I'm arguing is that the First Amendment limits the federal government only regarding official, established state churches. Your position seems to be that the word "respecting" constrains the federal government further, i.e., prevents it from any action that even approaches establishment.

Prof. Adler,

Thank you for the helpful background info.

Cornellian,

RE: commerce clause,
as we say on Fark, "THIS."
12.16.2007 2:45pm
PersonFromPorlock:
Note also that "an establishment of religion" is a term of art for a state-sponsored church, which is a civil entity and not a set of beliefs. There's nothing there to prevent the Congress from declaring America to be a Christian (or Jewish, or Moslem) country since these are religions and not churches.

Of course, the Equal Protection Clause trumps this.
12.16.2007 3:16pm
MarkField (mail):

Interestingly enough, the sedition laws were objected to under a lack of power issue, specifically no article 1 power for federal government to regulate press.


True enough, but the opponents also objected on free speech grounds. They made both arguments.


those who opposed the BoR appeared to be correct. The affirmative protection of rights was used as justification of the federal government getting involved in every matter that isn't mentioned, instead of staying within its enumerated bounds.


Actually, the argument (by Wilson and Hamilton especially) was that the mention of some rights would be used to deny the existence of other. That inclusio unius argument continues to be made today, most notably by Justice Rehnquist.
12.16.2007 3:22pm
theobromophile (www):
A few quick points:

The Bill of Rights is an amendment to the Constitution. It should not be read in a vacuum.


The affirmative protection of rights was used as justification of the federal government getting involved in every matter that isn't mentioned, instead of staying within its enumerated bounds.

Bingo. That is also the meaning of the IX and X Amendments - simply because our rights are enumerated does not mean that they should be restricted.

For fun: here is the Massachusetts Bill of Rights, as adopted eleven years prior to the Bill of Rights.
12.16.2007 4:25pm
Cornellian (mail):
My main complaint is with people who ignore the fact that "establishment of religion" has an actual legal meaning, and treat it as though it's a generic phrase meaning "endorsement" or "support" of religion. The position I'm arguing is that the First Amendment limits the federal government only regarding official, established state churches. Your position seems to be that the word "respecting" constrains the federal government further, i.e., prevents it from any action that even approaches establishment.

But the First Amendment does not say "Congress may not establish a state religion," it says "Congress shall make no law respecting an establishment of religion . . ." If establishing a state religion is a 5 step process, then enacting a law that implements only step 1 doesn't establish a religion but it's still a law respecting an establishment of religion.
12.16.2007 4:38pm
theobromophile (www):

"Congress may not establish a state religion," it says "Congress shall make no law respecting an establishment of religion . . ."

The latter further restricts Congress from prohibiting states from establishing religions.

Not to nit-pick, but you might want to re-write your first sentence to include the fact that there can be state religions and an American religion (i.e. those established by individual states, and one established by the nation through Congress and the Executive).

The only reason I nit-pick about that is because the Establishment Clause, as written, prohibits Congress from establishing a national religion, establishing religions in different states, and prohibiting states from establishing religions.

It is my understanding, regarding a free press, that the line was inserted to prevent licensing laws that were in place in England in the seventeenth century, and that states were welcome to have laws regarding libel, invasion of privacy, and defamation.

In that light, the fact that the Bill of Rights only restricts the central government seems rather sensible. States may establish their own religions, allow suits in defamation, devise their own court systems (actually, those existed that the time of ratification), and devise their own punishments. The Constitution is full of checks upon the federal government - internal checks through the separation of powers, checks through the limitation of powers, and, finally, checks through the assignation of rights to the states or to the people.
12.16.2007 5:28pm
Cornellian (mail):
"Congress may not establish a state religion," it says "Congress shall make no law respecting an establishment of religion . . ."

The latter further restricts Congress from prohibiting states from establishing religions.

Not to nit-pick, but you might want to re-write your first sentence to include the fact that there can be state religions and an American religion (i.e. those established by individual states, and one established by the nation through Congress and the Executive).


I haven't expressed any opinion about whether the First Amendment restricted states from establishing a state religion prior to the enactment of the 14th Amendment.
12.16.2007 5:48pm
theobromophile (www):
I'm aware of that. I'm just pointing out that your rewrite of a hypothetical Establishment Clause implicates that very issue.
12.16.2007 6:36pm
GV:
CEB, it appears our disagreement is over the meaning of the word "respecting." I concede that your reading is linguistically possible. But as I explained before, the contextual evidence overwhelming supports my position -- i.e., that the founders included the EC because they wanted to prevent the Government from passing laws that would have the tendency to create a national church (like they had in England). You seem to rest your argument on the fact that your reading is grammatically possible, without explaining either why mine isn't or coming forward with contextual evidence supporting your reading.

To the extent you're interested, I suggest you read the amicus brief written by the National Society of Evangelicals filed in support of cert. in Cutter . The brief provides a good overview of the strong historical support for the position I've laid out above. Justice Thomas's opinion in Cutter -- it was either a concurring or dissenting opinion) -- never discusses the strong historical evidence rejecting his viewpoint. But I don't think you'll find many (any?) historians who agree with Thomas or with you. If you have evidence, I'd be interested to see it.
12.16.2007 8:20pm
byomtov (mail):
Jonathan,

Thanks forthe background. I guess my point deals with the question you raise here:

Whether this approach was sufficient to protect individual liberty is another matter, however

It seems to me blatantly obvious that having the BofR apply only to the federal government would be insufficient to protect individual rights, since this implies that the states could override the guarantees.

In the case of the religion clause of the First Amendment, for example, it seems that all they do, under this interpretation, is protect the rights of the states to establish whatever religious rules they liked, without interference. So a state could ban Roman Cathilicism, for example, or make its practice mandatory, without federal intervention. This is no gurantee of individual rights at all - the more so when we consider how many restrictions there were on the right to vote at the time.

How does this fit with the prohibition against religious tests for office?
12.17.2007 10:49am