Mises Economics Blog
The Angry Economist
Civilian Gun Self-Defense
In The Pipeline
Fall of the State
Heresy and Incorporation
The other controversy raised in my post on Kelo concerns the applicability of the Bill of Rights to the States. I argued that it is incorrect to reject State applicability simply due to rejection of "incorporation" via the 14th Amendment. I believe that a plain reading of the Bill of Rights supports their applicability to the States even without the 14th Amendment.
Shocking! Outrageous! Heretic! Buuurn him! He's a witch, get a duck and some scales…
My first defense is that I'm a victim of the public school system, and I've only heard of "civics class" in myths and legends. I was never taught a damn thing about how the government works, and I blame the teachers. (I just blew all my sympathy, didn't I?)
My second defense will be to to explain my unorthodox — nay, heretical — reading of Bill of Rights by drawing from the Amendments themselves.
You'll get no argument from me on this one. "Congress shall make no law&hellip" Nothing about the States there. Fine, this one was only relevant to the Federal government.
See, I'm not totally unreasonable.
What's interesting about this is the lack of any clause defining the scope. There are crimes at both the state and federal levels, so this amendment could conceivably apply to either, or to both.
The natural reading of a sentence that doesn't delimit a scope is to apply it as broadly as possible. Unless there is a surrounding context that sets the scope, it should be read to apply to all cases.
I'll happily agree that context limits the scope of this amendment to the scope of the document to which it is attached — the Constitution of the United States. This amendment doesn't apply to foreign countries, only to the USA. But the Constitution affects the States extensively, so I refuse to grant any presumption that text applies only to the Federal government unless explicitly written otherwise.
Surely, the position that Federal scope should be assumed could be argued for. And that's exactly what I require: a convincing argument that the default scope of text is Federal only. I emphasize that such an argument is likely to be made by appealing to documentation other than the Constitution itself — which is valid, but carries a higher burden of proof.
This amendment does contain a clause defining its scope: "In all criminal prosecutions…" All of them. Every. Single. One.
Criminal prosecutions are possible at both the state and federal levels. The text of this amendment explicitly endorses a broad reading by saying "all" — it doesn't say "all federal" or "all state", it says "all". It's not okay to silently insert the word "federal" where you imagine it to be or would like it to be. It's not there!
I submit that this is prima facie evidence that the Bill of Rights did originally affect the States and not just the Federal government. The onus of proof is on those who would claim otherwise. Why should I read this amendment as if the word "federal" was inserted?
And just to be a pompous jackass about it, I have to ask, "What part of 'all' don't you understand?"
So, I wait for the extra-Constitutional scope-limiting argument. I'm actually fairly confident that it will both arrive and be convincing. And when it does, I'll be in a mood to scold the Founding Fathers for not making their intentions clearer in the body of the Constitution itself.
I leave you with a few closing thoughts. If the Bill of Rights was intended to limit only the Federal government and not the States, then the First Amendment's clause "Congress shall make no law…" was unnecessary and is mere surplusage. This is a dangerous reading, and must be rejected: