Most people think the federal government should “guarantee” their rights. In other words, they think the U.S. government should police state and local governments to ensure that they don’t violate their rights.
Practically speaking, the federal government does this through the “incorporation doctrine.” This Supreme Court-created legal principle applies the Bill of Rights to the states through the 14th Amendment. The incorporation doctrine provides a legal pathway for people to sue over rights violations in federal court.
For instance, if somebody thinks a local cop violated the Fourth Amendment warrant requirement, they will sue that police department in federal court. Or if a state passes a restrictive gun law, they will sue the state in federal court citing a violation of the Second Amendment.
It’s easy to see the appeal of this strategy. State governments often violate our rights. It’s reasonable to conclude that we need a more powerful body to keep them in check. The federal government fits the bill. After all, we have this thing called a Bill of Rights.
But this was never intended by the founding generation. The Bill of Rights was never intended to apply to the states. The preamble makes this clear.
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: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution. [Emphasis added]
The words “its powers” clearly refer back to the Constitution. The Bill of Rights was intended to “prevent misconstruction or abuse” of the Constitution’s powers as exercised through “the government” – the federal government. Notice the word government is not plural. The Bill of Rights makes no mention of state governments. In fact, the state ratifying conventions had no intention of restricting their state’s own powers. They already had state constitutions to do that job.
During the Philadelphia Convention, James Madison proposed the federal government should have veto power over state laws. The framers rejected this for good reason. But the incorporation doctrine effectively instituted what the founding generation rejected.
During the debate over ratification of the Constitution, one of the greatest fears voiced by opponents was the specter of “consolidation.”
The founding generation used the term “consolidation” to describe a centralized government with vast power and control, and many founders warned of its danger. For instance, during the Virginia Ratifying Convention, Patrick Henry issued a stark warning:
“Dangers are to be apprehended in whatever manner we proceed; but those of a consolidation are the most destructive.”
He went on to warn that consolidation would, “end in the destruction of our liberties.”
Why?
As William Davie told the North Carolina Ratifying Convention, “so extensive a country as this can never be managed by one consolidated government.”
Thomas Jefferson also warned about the problem of consolidation as a practical matter in an 1800 letter to Gideon Granger, wisely observing that the United States were too large to be governed by a central authority.
“Our country is too large to have all its affairs directed by a single government. public servants at such a distance, & from under the eye of their constituents, will, from the circumstance of distance, be unable to administer & overlook all the details necessary for the good government of the citizen; and the same circumstance by rendering detection impossible to their constituents, will invite the public agents to corruption, plunder & waste.”
A few politicians and bureaucrats simply cannot competently deal with local issues thousands of miles away – try as they might. And yet Americans have rushed headlong into “consolidation” — to their detriment.
The incorporation doctrine is nothing but a pathway to consolidation. It centralizes power at the federal level and leaves the states at the mercy of federal courts. Sometimes the courts issue an opinion favorable to liberty. But more often than not, they expand government power — particularly federal government power.
In other words – consolidation.
During the Delaware ratifying convention, some delegates argued the proposed Constitution needed an amendment to empower the federal government to guarantee religious freedom in the states. Henry Marchant responded with a poignant warning.
“It will be dangerous’ to call upon the new general government for a guarantee of religious freedom in the states. For the power to guarantee turns quickly into a power to control.” [1]
Marchant digs down to the root problem of depending on federal power to “protect” your rights. It gives the federal government more control over your life. And most of the time, it doesn’t even protect your rights. Look at how the Supreme Courts’ power to “protect” religious liberty turned out. We have federal courts dictating Christmas displays in local parks. Why would anybody want federal officials involved in such local concerns?
The key to protecting people from government power is limiting government power – not handing the government even more power. Never forget — power always comes down to control.
[1] Bradford’s Original Intentions, pg. 95
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