Today is Bill of Rights Day. The Cato Institute's Tim Lynch celebrates here.
If the BoR were up for vote today, it would overwhelmingly be rejected as pro-criminal, anti-children hogwash.
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.
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.
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.
Considering that many states had established religions, it seems as if the citizens would never have passed the First Amendment.
I know that's considered a crackpot position now....
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?
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.
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.
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.
"Congress may not establish a state religion," it says "Congress shall make no law respecting an establishment of religion . . ."