More on the BoR

Bryan, of Arguing With Signposts, makes the following legit point in the comments section of this post, but since it inspires a long-ish reply, I decided to move it out into the open, so to speak, rather than in the comments section.

Bryan stated:

" If the Founders had stuck to their original desire, "

I was under the impression that there was considerable debate, and that the BoR was something of a bargaining chip that got some to agree to the Constitution. Clearly, there were some founders who had different desires.

I am somewhat uneasy with attempts to fit all the "founders" under an umbrella of unanimity in all things political. I know that there were at least some (among the baptists and congregationalists) who were very keen on separation of church and state because of the early state-church status of churches in the colonies.

I would agree that there is a habit, to which I am guilty, of over-simplifying the situation and conflating the members of the Philadelphia Convention under the label "The Founders". However, in this case the generic label fits, and the issue to which you refer (church-state relations) is a good example of where I am coming from.

First, it is fair to speak of "The Founders" as having reached a decisions once a decision was, in fact, made. And the decision was made to omit a Bill of Rights from the Constitution at the convention itself. And the Federalist Papers represented the official position of the Convention as interpreted by Hamilton, Jay and Madison, as the expressed purpose of those essays was to convince New York to ratify the Constitution. The BoR emerged as a political compromise to get the states, some of whom wanted a BoR, to ratify the Constitution. That is to say, the BoR was not part of the proposal sent to the states, nor was the BoR part of compromise to get the document itself out of the convention, rather it was added after ratification of the constitution itself. Anyway, the basic point is that yes, while there was a debate, that once the conventioneers had voted out the proposed Constitution sans a BoR that it is fair to say that the consensus of the Founders was that there be no BoR.

They did not include that declaration of rights for a variety of reasons, including the idea that Hamilton sets forth in Fed 84 that regulating or prohibiting the national government from doing something it was not granted the power to do, or even close to doing, made no sense. Further making a list has the effect, often, or limiting rights, and third the original conception of the national government was that it would be so limited as to not have the ability to really tread on the rights of citizens.

Second, the church-state thing is quite interesting, and does illustrate, really, my basic point, which is that the original goal of pure federalism is eroded over time, and partially for reasons that Hamilton noted in my previous post, and also by actions of the SC, the addition of the 14th Amendment and so forth. The First Amendment prohibition against the establishment of religion was aimed, originally and exclusively, at the national government. Indeed, there were official churches in some of the states even after the ratification of the constitution. For example, Connecticut had an official church until 1813, and Massachusetts until 1833. They were not in violation of the First Amendment, because at the time the BoR was not interpreted to apply to the actions of states (indeed, since the First Amendment starts with "Congress shall make no law…" it is pretty clear that the original intent was for the First Amendment to apply only to the central government). It was not until the Fourteenth Amendment opened the door for the incorporation of the BoR to the states, and then not until a series of Supreme Court cases, predominantly in the 1920s and 1960s, that the BoR applied to the states (and even then, only right by right, the entire BoR is still not wholly incorporated).

Hence, my basic point yesterday was that had there been no BoR, these issues would have not been federal ones in the first place. I am not arguing that we should repeal the BoR, but rather pointing out that they are, as they have been interpreted, part of the dilution of federalism. That is to say, by prohibiting the federal government from passing certain legislation, it became necessary for the federal courts to interpret what those prohibitions meant, which led, through a variety of processes, to the federal courts considering if/how those prohibitions should apply to states. If the prohibitions had never been put in place in the first place, then there never would have been any reason o ever discuss how they should or should not be applied to the states.

This leads to yet another, and far longer discussion, that I will leave alone for the moment. Plus, I figure Brett will jump in soon, and maybe James :)

Posted by Steven Taylor at June 28, 2024 09:53 AM | TrackBack