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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.

Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

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.

Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

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.

Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

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:

It cannot be presumed that any clause in the constitution is intended to be without effect;... — Marbury v. Madison, 5 U.S. 137, 174 (1803).

To disregard such a deliberate choice of words and their natural meaning, would be a departure from the first principle of constitutional interpretation. "In expounding the Constitution of the United States," said Chief Justice Taney in Holmes v. Jennison, 14 U.S. 540, 570-1, "every word must have its due force and appropriate meaning; for it is evident from the whole instrument, that, no word was unnecessarily used, or needlessly added. The many discussions which have taken place upon the construction of the Constitution, have proved the correctness of this proposition; and shown the high talent, the caution and the foresight of the illustrious men who framed it. Every word appears to have been weighed with the utmost deliberation and its force and effect to have been fully understood. — Wright v. United States, 302 U.S. 583 (1938).

Where the words of a constitution are unambiguous and in their commonly received sense lead to a reasonable conclusion, it should be read according to the natural and most obvious import of the framers, without resorting to subtle and forced construction for the purpose of limiting or extending its operation. — A State Ex Rel. Torryson v. Grey, 21 Nev. 378, 32 P. 190.

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