The debates over the adoption of the Constitution found the Anti-Federalists fearful that as drafted, the Constitution created a central government that may have the opportunity to become a tyranny. These fears were based on the memory of the British violation of basic civil rights before and during the American Revolution. With past British tyranny as a frame of reference, the Anti-Federalists demanded that a "bill of rights" be written that would clarify without question the immunities of individual citizens. Though the amendments of the Bill of Rights were not proposed until 1789, several state conventions during their ratification conventions ratified the Constitution with the understanding that the amendments would be offered.
One of the fears regarding the proposal of the Bill of Rights was that by trying to protect specific rights, it might imply that any unmentioned rights would not be protected. It was believed by many that as a result, the Bill of Rights was actually unnecessary, for in the British system of common law natural rights were not defined nor quantified. Adding a Bill of Rights to the Constitution may actually limit the rights of the people to those listed in the Constitution. As a result of this argument, included in the Bill of Rights is the Ninth Amendment. . .
. . . The Bill of Rights was originally not meant to be a guarantee of individual freedoms at all, but a limitation of federal authority against our God given rights. In other words, the Bill of Rights was not written for the people, but for the federal government as a means of telling the federal government what it cannot do in regards to our unalienable rights. . .
. . . The Bill of Rights was understood, at its ratification, to be a bar on the actions of the federal government. Prior to the incorporation of the Bill of Rights to the States by the courts as based on their interpretation of the Fourteenth Amendment, the Bill of Rights did not apply to the states.
The argument used, despite original intent, that the Bill of Rights must also apply to the States is based more on philosophy, than historical evidence. One of the philosophical standpoints used is that if the specific rights given in the Bill of Rights are based on the more general rights to life, liberty, and happiness which in turn are considered to be God-given and unalienable, then state governments do not have the authority to infringe on those rights no more than can the Federal government.
The argument, however, simply suggests that the Bill of Rights ought to apply at the state level, not that it originally did.
So, if the Bill of Rights originally only applied to the Federal Government, and over time has changed to be something that was applicable on the state level through court decisions, the reality is that the Constitution itself has never allowed the Bill of Rights to be applied to the States. The change was done by judicial means, meaning that the Constitution has been changed by judicial activism. The problem, however, is that according to the Constitution, the only way to change the Constitution is through an amendment process. Therefore, the incorporation of the Bill of Rights to the States occurred unconstitutionally. . .
Join us at 6pm in Temecula at Faith Armory, 27498 Enterprise Cir. W. next to Birth Choice. Class is free. Pocket Constitutions are handed out to all attendees.