The Bill of Rights and Federalism

I. Introduction

The Amendments to the Constitution dominate current legal and political controversies. The Bill of Rights – Amendments one through ten – and the Fourteenth Amendment have wrought enormous changes. We explain the Bill of Rights now, and reach the Fourteenth Amendment in a future class.

II. Bill of Rights

Opposition was so strong to the Constitution that its supporters had to promise a “Bill of Rights.” But ratification only required nine out of thirteen states (Article VII), and that was attained when a convention in New Hampshire approved it (57-47) on June 21, 1788. But the large states of Virginia and New York had not yet joined the Union, and the Anti-Federalists were strong in both states. These were the home states of Madison and Hamilton, respectively, the biggest supporters of the Constitution.

Virginia only ratified the Constitution by adding a bill of rights for 20 changes, and demanding 20 other changes too. In New York, defeat seemed likely until Hamilton cleverly procured a delay to await news from New Hampshire and Virginia. When news of their ratification reached New York, sentiment moved in favor of the Constitution and it narrowly passed on July 26, 1788. The vote was a very close 30-27. Still, New York demanded another constitutional convention to add a Bill of Rights.

To avoid another constitutional convention, the first Congress passed 12 constitutional amendments and sent them to the states for ratification. The states ratified ten of them by the end of 1791, and they became known as the “Bill of Rights” because they protect the people against certain government interference.

The Bill of Rights is very short: you could completely memorize them in a few days. They are set forth on pages 330-31 of the textbook. What they mean, however, could fill an entire library.

The first two amendments establish fundamental freedoms, including the right to keep and bear arms. The third amendment prohibits placing troops in people’s homes in time of peace. The fourth through eighth amendments establish legal rights, particularly for the accused. The ninth amendment is a vague protection of individual rights, and the tenth amendment protects state rights.

The First Amendment receives the most attention. It prohibits Congress from infringing on free speech, press, assembly, petition and religion; it also prohibits the establishment of religion. By implication, it protects freedom of association. It expressly applies only to Congress, but the courts have since applied it against all the states too.

In fact, virtually all of the Bill of Rights now protect citizens against all forms of government: federal, state or local.

Let’s look at important sections of the Bill of Rights:

A. The Free Speech Clause.

The First Amendment protects the greatest of all constitutional rights: “Congress shall make no law … abridging the freedom of speech.” This protects religious and political speech. It protects prayer in many circumstances; it also protects evangelizing. It was unique to America, reflecting the Great Awakening and preaching that permeated the colonies in the 1700s.

Originally, “speech” would not have included as much as it does today. Over the years, the Supreme Court has expanded what is protected as speech under the First Amendment.

Now speech includes, for example, the burning of the American flag. It includes spending money on political campaigns. It can include vulgar or obscene words. It offers some protection even to commercial speech, such as certain advertisements.

When something qualifies as “free speech,” the protection against regulation of its content is nearly absolute. Only a compelling interest by the government can justify infringing on such speech, and the regulation must be narrowly tailored for a necessary goal.

One might ask, why isn’t all speech protected? Why should the government be able to abridge any speech?

It is easy to think of examples of speech that should not be free and protected.

Consider terrorism. Suppose an anonymous caller phones a hospital and says there is bomb there. The hospital may have to evacuate as a precaution. Operations would be immediately stopped, and the very sick would be moved with great difficulty. Or imagine someone on an airplane standing up in mid-flight and announcing he’s a terrorist. Passengers would panic and the airplane would be forced to land immediately. There can be no constitutional protection for this type of speech.

Before airplanes and terrorism, the classic example of unprotected speech is yelling “fire” in a crowded theater. People would stampede for the exits, and some could be injured.

The Supreme Court has said that “fighting words” are not “free speech” protected by the First Amendment. Other types of speech are also excluded from the First Amendment. But over time, the Court has redefined protected speech to be broader and broader, including even conduct like flag-burning and political campaign spending.

B. The Establishment Clause.

The First Amendment begins with: “Congress shall make no law respecting an establishment of religion ….” Known as the “Establishment Clause,” this is increasingly used against state and local government. In 1962, this clause was the basis for the Supreme Court to ban prayer in the schools (Engel v. Vitale). It is the basis for the recent ban on the phrase “under God” in the Pledge of Allegiance, and the order to remove the Ten Commandments plaque from the Alabama Supreme Court.

The Establishment Clause is rooted in Thomas Jefferson’s Virginia Statute for Religious Freedom of 1786. Its purpose was to prevent an elite class of clergy, funded by government. “The law for religious freedom, which made a part of this system, having put down the aristocracy of the clergy, … restored to the citizen the freedom of the mind, and those of entails and descents nurturing an equality of condition among them.” Letter by Jefferson to Adams, Monticello (Oct. 28, 1813).

Neither Jefferson nor James Madison wanted an aristocratic clergy like in England. They opposed American imitation of the Church of England.

Jefferson and Madison were hostile to nobility and primogeniture (the English rule that gave all inheritance to the oldest son). The Constitution bans titles of nobility, as does the Articles of Confederation. Jefferson worked to abolish English rules of inheritance from Virginia law.

Note that the Establishment Clause applied only to Congress. Read it again. “Congress shall make no law ….”

After the Civil War, some in Congress sought to extend the Establishment Clause against the states. That would have been pointless if it already applied against the states. The proposals substituted “state” for “Congress” in copying from the First Amendment: “No state shall make any law respecting an establishment of religion or prohibiting the free exercise thereof ….” H.R. Res. I, 44th Cong., 1st Sess. (1875) (emphasis added). But the proposed amendment never passed.

Eventually, someone hostile to religion in public life rose to power on the Supreme Court. Justice Hugo Black, a former member of the Ku Klux Klan, pushed the court to ostracize religion from schools and government. He wrote the opinion banning prayer from public schools, and other opinions ostracizing religion. Since then courts have banned the Ten Commandments and now even the Pledge of Allegiance.

C. Protections for the Accused.

In colonial America, those who favored independence were considered enemies of the King. Some were prosecuted. Peter Zenger, for example, was prosecuted for published materials critical of the governor of New York, who was appointed by the Crown. Zenger was acquitted by an American jury in a famous case establishing the freedom of the press. But the jury had clearly saved him – had a judge tried the case, he would have surely been sent to jail.

The original Constitution included few protections for individual liberties, but it did guarantee the right to a jury trial. Art. III, Section 2. The Founders were sure to include that. To this day, 95% of jury trials held in the entire world are in the United States.

This protection was not enough for colonists still mindful of the British prosecutions. The bulk of the Bill of Rights added many additional safeguards against abusive prosecutions by government.

The Fourth Amendment protects citizens against unreasonable searches of their homes and personal belongings. Warrants signed by a neutral judge or magistrate are required. The Supreme Court imposed the “Exclusionary Rule” to prohibit use of unlawfully obtained material at the trial of the accused.

The Fifth Amendment allows an accused to avoid testifying in his own case, and gives him the right to counsel. The Supreme Court later required government to read Miranda warnings to any accused held in custody before interrogating him.

The Sixth Amendment established the right to counsel, and the Supreme Court later forced states to pay for an attorney when the defendant cannot afford it. It also establishes the right to an “impartial” jury in the district where the crime allegedly occurred, and a right to a speedy and public trial. This expands on the right to jury trial in the original Constitution.

The Seventh Amendment establishes a right to jury trial in civil (non-criminal) cases involving more than $20 (which isn’t much today, due to inflation!).

The Eighth Amendment prohibits excessive bail requirements, which is what an accused must post to be released from jail before trial. It also prohibits excessive fines or cruel and unusual punishment.

The Seventh of the Ten Commandments says “Neither shall you bear false witness against your neighbor.” Deuteronomy 5:20. That prohibits false accusations, and false testimony in court. If everyone obeyed this commandment, then many of the above protections would not be needed.

In fact, false accusations were a problem in colonial America as they are today. Colonists feared the power of the new government being used to intimidate witnesses into testifying falsely, and imprisoning critics of government. During the President of John Adams, a few of his opponents were fined and even imprisoned under the Sedition Act for criticizing the president.

The Sixth Amendment contains perhaps the greatest safeguard of all against false accusation: the right “to be confronted with the witnesses against him.” This includes the right of cross-examination, by which an accused’s attorney can question the government witnesses in open court. Statements made outside of court can be excluded in criminal trials if the defendant lacks an opportunity to cross-examine the person who made the statement. “I heard someone say he saw defendant rob the bank” isn’t going to be allowed, unless that someone is cross-examined in open court.

Many feel that these amendments have been expanded too far to protect dangerous criminals. This became a national controversy in the 1960s, as the Supreme Court interpreted these amendments broadly in favor of criminal defendants.

Others, while no friends of real criminals, feel we need the protections to limit a government greedy for power. Christianity is based on the unlawful execution of an innocent man, Jesus. He had no right to an attorney in Roman court. The Greeks, not the Romans, allowed advocates or attorneys in trials.

Many would rather see fifty guilty persons go free than to wrongly convict an innocent man. What do you think?

III. Federalism & the Constitution

The Supremacy Clause may be the most important provision in the entire Constitution

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof … shall be the supreme Law of the Land … any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

U.S. Const. Art. VI.

What does it mean? It means that Congress overrides every state law and state constitution. The federal government reigns supreme. What it says, goes.

In our history, states have sometimes defied congressional law. James Madison and Thomas Jefferson themselves started the nullification doctrine, declaring that a state could nullify as unconstitutional an act of Congress (in their case, the Alien and Sedition Acts in 1798). After all, what is a state to do if Congress and the Supreme Court team up against it? In 1809, the Pennsylvania legislature ordered the state militia to prevent a federal marshal from serving a writ (order) that it felt was unconstitutional. The federal officers simply arrested the state militia, but James Madison pardoned them.

Later, nullification doctrine led to the Civil War because it justified secession. As recently as 1956, southern states invoked the doctrine to reject the Supreme Court ruling of Brown v. Board of Education (1954), which desegregated schools. The federal government enforced that ruling over objections by southern states.

Some states, like West Virginia, defer to federal law in their own state constitutions. Article 1, Section 1 of the West Virginia Constitution provides:

The State of West Virginia is, and shall remain, one of the United States of America. The Constitution of the United States of America, and the laws and treaties made in pursuance thereof shall be the supreme law of the land.

Perhaps you can think of why West Virginia expressly accepts federal supremacy. (Answer: West Virginia was formed by splitting off from Virginia in order to join the Union during the Civil War. Virginia remained with the southern Confederacy.)

Large states, like New York, Virginia and Massachusetts, were very reluctant to give away their power to the federal government by ratifying the Constitution. James Madison assured them that the “powers delegated by the proposed Constitution to the federal government are few and defined. Those that are to remain in the State governments are numerous and indefinite.” (Federalist No. 45)

Madison’s assurance seemed true at the beginning, but over time the federal government seized more and more power for itself, as opponents of the Constitution had feared.

IV. Key Decisions concerning Federalism

The Supreme Court is part of the federal government, and until recently it has consistently expanded federal power. This is self-serving and predictable. Many, unfortunately, like to seize more power for themselves. Also, many judges tend to enjoy exercising authority over others.

In Marbury v. Madison (1801), the Supreme Court grabbed the power to invalidate laws of Congress as unconstitutional. This is known as the principal of “judicial review.” It affects the relative power of the Supreme Court with respect to Congress. It does not affect federalism, because the states were not involved.

In McCulloch v. Maryland (1819), the Supreme Court decided a contest between the federal government and the state of Maryland. Guess which side the Supreme Court chose? The federal government, of course, because that is what the Supreme Court itself is. It held that the Necessary and Proper Clause of the Constitution gives Congress broad powers. The states cannot interfere with a law passed by Congress. (In this case, Maryland tried to tax the national bank operating within its state. The Court voided the tax.)

The expansion of federal power continued in the courts for another 150 years. Not until Justice William Rehnquist arrived to the Supreme Court (see handout) did the tone start to change. Here are some more examples:

In Gibbons v. Ogden (1824), the Supreme Court interpreted the Commerce Clause to include virtually any business activity between two or more states. This greatly reduced the power of states to regulate commerce.

Now, much legislation by Congress is justified based on the Commerce Clause. For example, civil rights legislation banning discrimination in places of public accommodation (e.g., hotels, restaurants, trains, airplanes) is based in the Commerce Clause. This was upheld by Heart of Atlanta Motel v. United States (1964). Since almost anything affects commerce, it is difficult to find many limits on federal power anymore.

One limit that does still exist is in family law. It remains outside the reach of the federal government. Education has also been beyond federal power, but President Bush’s No Child Left Behind has greatly expanded federal influence in this area. Most types of crimes, including most murders, are still beyond federal power. States alone can prosecute them, unless state lines were crossed during the commission of the crime.

V. Types of Federalism

Let’s review various forms of national government:

unitary system: national government has all the power. Examples: England, France and Italy.

cofederal system: states have all the power. Examples: colonies under Articles of Confederation.

In between these systems is the federalism unique to our Constitution. For legal, political and economic reasons, the system has changed over the years:

dual federalism (1788-1932): limited federal government no stronger than the states. Each has its own separate authority. Not much cooperation between the two. Examples: federal government runs the mails, state government runs the police.

cooperative federalism (1932-1965): responsibilities of federal and state government are mixed. Exclusive state power erodes.

centralized federalism (1965-1972): federal government asserts its power in cities, health care, schools, etc., with large spending programs under President Johnson’s Great Society. Also known as “creative federalism.”

new federalism (1972-today): conservative movement to return power and money back to the states, away from the federal government.

Which do liberals prefer? A strong federal government. Which do conservatives prefer? A weak federal government.

Here is a more difficult question: which do big companies prefer? Think about it. (Answer: Big companies want to avoid 50 different state regulations. They tend to prefer a strong federal government. Hence big business creates another source of pressure for weakening state power further.)

VI. Issues

1. Are laws against certain advertisements unconstitutional?

The federal government reserves the right to prohibit certain types of advertising, such as ads for harmful products like alcohol or cigarettes. Tobacco companies voluntarily stopped television ads rather than wait until the federal government banned them. The First Amendment says “Congress shall make no law … abridging the freedom of speech.” Should the federal government have the power to ban certain types of ads?

2. free 50 guilty defendants rather than convict one innocent defendant?

The Bill of Rights contains many protections for criminal defendants. Clearly, these rules will allow some guilty defendants to go free in order to minimize convictions of innocent persons. Do you agree with this approach?

3. Is there a constitutional right for defendants to question potential jurors before trial?

The selection of the jury is often the most important aspect of a criminal trial. The Sixth Amendment guarantees an “impartial jury,” so questions are asked of potential jurors to identify bias for one side or the other. A jury that favors government is what the prosecutor wants; a jury skeptical of government is what the defendant seeks. How much freedom should the defendant have in asking questions of potential jurors before they are chosen for the trial? This process is known as “voir dire.” In state court, defendants have much more leeway than in federal court, and the conviction rate is higher in federal court partly for this reason. Should defendants have a right for their attorneys to question potential jurors during jury selection?

4. Does the Fourth Amendment prohibit drug testing of all public school students?

Lecture 2 Quiz