The Bill of Rights Against the States

The Bill of Rights against the States, by Patrick Frise,

most Americans have no idea their state has a constitution.

They cannot name a single right, it protects.

Ask where their rights come from, and they will either

plead the fifth or point to the federal Bill of Rights.

What they do not know is that colonies first, then

states had declarations of rights before the federal government existed.

Often more expansive than anything the federal document would guarantee.

Virginia enacted its Declaration of Rights nearly 250 years ago on June 12,

1776, before the Declaration of Independence.

George Mason drafted it.

Thomas Jefferson lifted whole passages when writing the Declaration.

Virginia did not wait for a national government to tell

what rights its citizens had.

Other states followed.

Massachusetts, Pennsylvania, and the rest wrote constitutions

and enumerated protections during the war that were binding laws,

enforceable in state courts, sovereign declarations by independent republics.

When the 13 colonies broke from Britain, they became 13 sovereign republics.

The federal Bill of Rights ratified 15 years after Virginia's declaration

was not the source of American liberty.

It was a safeguard against one specific threat, federal overreach.

The rights it protected already existed in state constitutions.

The federal Bill of Rights was a leash on federal power, nothing more.

To understand why incorporation distorts the Constitution,

consider who shaped the constitutional debate.

History textbooks label Alexander Hamilton and Governor Morris as

federalists and their opponents as anti-federalists.

However, Hamilton and Morris were centralists.

True federalism is bottom up.

Sovereignty remains with families, towns,

states, and local bodies that delegate limited powers upward.

The sharpest fear of these true federalists was the Supreme Court.

If the federal government could determine its own limits,

there would be no limits at all.

The court, appointed by the president and confirmed by a Senate,

both belonging to the same federal apparatus,

would inevitably interpret its own power expansively.

As John Allen Smith wrote and as quoted by Murray Rothbard in Anatomy of the State,

the founders assumed the new government could not be permitted to

determine the limits of its own authority since this would make it

and not the Constitution supreme.

That assumption has been so thoroughly violated that most Americans do not

recognize it was ever made. In 1833, Chief Justice John Marshall

ruled in Barron versus Baltimore that the Bill of Rights applied only to the

federal government. Barron sued Baltimore claiming his

wharf had been destroyed without compensation

in violation of the Fifth Amendment. Marshall dismissed the case.

The Bill of Rights was intended solely as a limitation on the exercise of

power by the government of the United States

and not applicable to the legislation of the states.

The federal court had no jurisdiction. Notably, this ruling was an anomaly for Marshall

who spent his career expanding federal power.

Then came the 14th Amendment in 1868 and with it,

thanks to 20th Century Courts, the doctrine of incorporation.

The amendment contains a privileges or immunities clause that the court has used

sporadically. Recognizing rights like property ownership, interstate travel,

and access to navigable waters, but never as the textual basis for applying the

Bill of Rights to states. This was a role it was gutted from performing

in the slaughterhouse cases 1873, leaving its actual scope

undefined, which makes sense because the language itself is ambiguous

without clear precedent. Instead, the amendment due process clause became

the court's justification for applying the Bill of Rights to states.

This is incorporation, but incorporation faces a threshold problem

court has never addressed. Article 3 does not grant federal court's jurisdiction

to hear these cases. Article 3 enumerates precisely what cases

federal courts may decide. Disputes arising under federal law,

cases between citizens of different states,

controversies where the United States' party disputes between states, etc.

Cases between a citizen and their own state do not appear.

That omission was intentional. A citizen's complaint against their own state

belonged in state court under state law. The 11th Amendment, ratified in 1795,

confirmed the structure. States retain sovereign immunity from suit.

Federal courts cannot haul a state into court without its consent.

This was foundational as states are sovereign entities that could not be subjected

to federal judicial authority over internal matters.

Incorporation obliterates this. When a citizen sues their own state

for violating incorporated Bill of Rights provisions,

which Article 3 grant of jurisdiction applies none?

The 14th Amendment does not mention courts, jurisdiction,

amend Article 3's enumerated categories and does not repeal the 11th Amendment.

The court in the 20th and 21st century treats the 14th Amendment as if it silently

rewrote the entire jurisdictional architecture of the federal judiciary.

The irony in barren versus Baltimore is that martial rule the Bill of Rights did not apply

to states but assume jurisdiction to reach that conclusion.

No discussion of Article 3 categories, no analysis of sovereign immunity.

Marshall decided the merits without establishing authority to hear the case,

committing the jurisdictional error in corporation would later institutionalize.

Even in the post 14th Amendment era, the court in Hans versus Louisiana 1890

held that citizens cannot sue their own state in federal court.

Because Article 3 does not grant such jurisdiction and the suability of a state

without its consent was a thing unknown to the law.

So how did the court work around this?

The court in X Parté Young 1908 allowed suits against state officers instead of states,

a semantic dodge where the relief still runs against state policy.

Fitzpatrick versus Bitzer 1976 held Congress could strip state immunity to enforce 14th Amendment rights,

treating the amendment as if it silently repealed the 11th. Along these we could mention other examples

where the logic is likewise thin. Congress, likely seeing the jurisdictional gap,

passed Section 1983 in 1871 by creating statutory authority for federal courts to hear claims

against state officers. However, this legislative work around simply confirms that Article 3 never

contemplated such jurisdiction, necessitating statutory and judicial contortions to achieve

what would otherwise be constitutionally impossible.

Many proponents of incorporation point to Section 5 of the 14th Amendment,

but even if Congress has power under Section 5 to enforce rights or remedies,

that does not automatically give federal courts jurisdiction.

Article 3 defines what cases federal courts can hear. Section 5 grants legislative power,

not judicial jurisdiction. Congress can't expand Article 3 categories by statute that requires

constitutional amendment. The 14th Amendment was sold as protecting rights against state tyranny,

but granting federal courts power to override state constitutions created a greater danger,

concentrated power in an unaccountable and capricious tribunal. The true Federalists understood

that concentrated power even for good purposes becomes tyrannical. Decentralization made rights

sustainable. If one state protected speech more robustly than another, citizens could vote with

their feet or use state constitutional protections available. Jurisdictional competition

created a race to expand liberty. Incorporation replaced competition with uniformity.

Additionally, the court has never incorporated every amendment because it cannot.

The 5th requires grand juries. Most states don't use them. The 3rd prohibits

quartering soldiers, relevant only to federal armies, not state militias.

The 9th and 10th are structurally impossible. How do you incorporate an amendment

reserving powers to states and the people by using federal power to override states?

The court incorporates selectively and discarded the 10th.

But the 10th is the structural foundation of federalism. It reserves all non-delegated powers

to the states and the people. In a real sense, incorporation handcuffed it,

criminal law, education, property regulation, gun policy, and every state power now runs through

federal courts reviewing incorporated rights. States have reserved powers only until a federal

judge says otherwise. The 14th has become a magic hat from which judges pull preferred outcomes.

Once the court claimed authority to apply the bill of rights to states, it invented a hierarchy

of rights in the 20th century. Some receive strict scrutiny requiring compelling government

interest. Others get rational basis review, where the government nearly always wins.

The court decides which tier applies determining the outcome before arguments begin.

Property and economic liberty? Rational basis. Speech? Strict scrutiny.

The second amendment shifted from intermediate scrutiny to a text and history test in 2022.

These categories appear nowhere in the Constitution. They're a judicial management tool

masquerading as constitutional interpretation. The First Amendment reads,

Congress shall make no law, not unless it passes strict scrutiny.

Murray Rothbard warned that the state shows striking talent for expanding power beyond any imposed

limits. Incorporation is a case study. The federal government was given a limited role.

The bill of rights enforced that limitation as well as other negative powers within the Constitution.

The Supreme Court became the vehicle through which the bill of rights was inverted.

Transformed from a check on federal ambition into a nationwide tool of federal judicial authority.

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