Today in 1791, the first ten amendments were ratified by the requisite number of American states. As stated in the Preamble of the document, at the time of the Constitution’s adoption many within the states expressed a desire to prevent “misconstruction or abuse” of the federal government’s power. These ten amendments became known as the Bill of Rights, even though various bills of rights already existed at the state level.
Prior to arriving at 12 proposed amendments to send to the states for ratification, the states listed various proposals for amendments in their original ratification documents, almost all of which were premised upon the idea of limiting federal authority in various ways. Skeptics and opponents of the Constitution did not want to take Federalist assurances at face value, and hoped the amendments would make the boundaries of the federal government explicit and unmistakable. Patrick Henry, George Mason, Melancton Smith, John Lansing, Luther Martin, and Elbridge Gerry were among them.
While many believe the Bill of Rights was an obvious addendum that was popularly supported by all factions, it was not. It was the original position of many prominent Federalists, including James Madison, Alexander Hamilton, Roger Sherman, and James Wilson, that it was wholly unnecessary. This was because Federalists had promoted the Constitution in such a way as to guarantee that the federal government could only exercise the powers listed in the document, reserving all others to the states, and making the assumption of any unspecified power a bold usurpation.
In his famous State House Yard Speech, Wilson claimed the addition of a bill of rights would be “superfluous and absurd.” Echoing this sentiment in Federalist #84, Hamilton asked, “for why declare that things shall not be done which there is no power to do?” Still, the Federalists acquiesced when overwhelming support for a bill of rights materialized in the states, and the ratification of several, including Massachusetts and New York, hinged upon its inclusion.
The First Congress allowed Madison to collate the list of amendments to send to the states for their consideration, and Sherman made the determination that those that were adopted should be affixed to a separate document rather than interspersed throughout the existing text. Although 12 amendments were sent, only ten were ratified by 1791. One of those not ratified at the time, which would prohibit alteration of Congressional pay until after the next election, was finally ratified in 1992.
Ironically, what was originally an explicit list of prohibitions against federal power has gradually turned into an instrument regularly cited by federal judges in the interests of expanding federal power and regulation over individual rights. Whereas the Bill of Rights originally intended to act as limitations against only the general government, the federal judiciary now claims an overarching, supervisory power over the state governments as well.
It does so through a fallacious notion that the 14th Amendment incorporated these prohibitions against the state governments as well, a principle known as the “incorporation doctrine.”
As Raoul Berger demonstrated definitively in his seminal work on the topic, “Government by Judiciary,” this contention is fallacious and does not meet historical or logical scrutiny. The federal judiciary did not even claim this power until 55 years after the adoption of the 14th Amendment.
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