by Kevin R.C. Gutzman

With its decision in Nordyke v. King last week, in which the recent Supreme Court Heller decision was applied to state law, the Ninth U.S. Circuit Court of Appeals took another step down the long road of “incorporating” the Bill of Rights into the Fourteenth Amendment’s Due Process Clause.

In doing so, it continued down the path toward completely inverting the model of government to which The People agreed when they ratified the Constitution.

The Preamble to the Bill of Rights says, in part, “The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added… RESOLVED … that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States ….”

(Are you surprised that you have never read this before?  That it is not usually included in printed versions of the Constitution?  What accounts for that omission, do you think?)

Unsurprisingly, then, the First Amendment begins by saying, “Congress shall make no law.”  Why?  Because, as stated in its Preamble, the purpose of the Bill of Rights was to ensure that the Federal Government did not abuse its powers.

So widely was this understood to be the purpose of the Bill of Rights that in Barron v. Baltimore (1833), Chief Justice John Marshall for a unanimous Supreme Court ruled that the Bill of Rights limited only the powers of the Federal Government, not those of the states.  This was the only significant constitutional decision in which Marshall ever ruled against federal authority.

James Madison endeavored in the First Congress to include in Congress’s proposed bill of rights an amendment providing for federal judicial oversight of states’ behavior in respect to certain rights.  His effort was unavailing.

Thus, when “originalist” Antonin Scalia announced that the First Amendment establishes a right to burn a flag enforceable by federal courts against state authorities, he showed exactly how “originalist” he really is.

When Randy Barnett took to the pages of The Wall Street Journal last week to state that federal protection of all individual rights against state infringement was part of the original plan of the U.S. Constitution, he revealed how concerned with the consent of the governed he really is.


The 10th Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”



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