The Bill of Rights:
Some citizens believe the first ten amendments are the "Bill of Rights". 2 Others consider the first eight amendments to be the "Bill of Rights". 3 In fact the first ten amendments were all ratified at the same time (December 15, 1791). The first eight pertain essentially to positive recognition of citizen rights and negative restrictions on government, all aimed at protecting citizens from mega-government. In other words, the first eight amendments set basic guidelines as a bulwark against government induced bloodshed. The 9th Amendment does no more than confirm that the few rights explicitly acknowledged in the Constitution, are by no means an exhaustive list of rights, and the existence of such expressly recognized rights should "not be construed to deny or disparage [other rights] retained by the people". 4 So the 9th Amendment should be viewed as an appendage to the first eight amendments. The 9th Amendment is part of the same material as the first eight amendments. All of the first nine amendments are focused on the protection of rights. But the 10th Amendment is different. 5 In the same way that the 9th Amendment is an appendage to the first eight amendments, the 10th Amendment is an appendage to the first seven articles of the Constitution. Out of all the amendments that were proposed by the State conventions that ratified the Constitution, the most common proposal was the Reserved Powers Clause that now appears in the 10th Amendment. 6
The 9th Amendment basically says that all the "rights" not mentioned are "retained by the people". The 10th Amendment basically says that all the "powers" not mentioned are retained by the States and the people. So the 10th Amendment pertains to the delegation of powers, while the 9th Amendment pertains to the protection of rights. Since all seven articles of the Constitution pertain to the delegation of powers, the 10th Amendment is more part of the process of power delegation than part of the process of rights protection. For that reason, in upcoming articles in this examination of the Constitution, we will examine the 10th Amendment before we examine any of the other amendments – because it is part of the same power delegation material as the first seven articles.
When the first ten amendments were ratified, it was commonly believed by all concerned that these ten amendments pertain exclusively to the national government, and not to the States. This commonly held belief was confirmed by a unanimous supreme Court decision in Barron v. Baltimore (1833). Writing for the Court, Chief Justice Marshall indicated emphatically that these amendments apply exclusively to the national government, and "emphatically not to the states". But since the 14th Amendment was ratified in 1868, its Due Process and Equal Protection Clauses have been used by the supreme Court to force the States to "incorporate" parts of the Bill of Rights. 7 This incorporation process has been gradual, and has proceeded piecemeal.
The standard established by Barron v. Baltimore that prevailed until the War Between the States, was that the "guarantees of the federal Bill of Rights limited only the federal government, not the state governments.". 8 So in the slave States until 1865, any speech or publication critical of slavery was illegal. In these ex-slave States after 1865-1866, southern citizens who had been loyal to the Union, Republicans, African-Americans (via "Black Codes"), and others, were denied by law the exercise of their unalienable Rights to freedom of speech, press, the bearing of arms, etc. In 1873 a case came before the supreme Court in which the plaintiffs claimed that the Privileges and Immunities Clause of the 14th Amendment applied to their grievance. If the Court found that it did, indeed, apply to their grievance, then the Court would implicitly nullify all this denial of due process and Equal Protection that existed in these southern States. But the Court decided not to rule that way.
This grievance that came before the supreme Court in 1873 was caused by a law in Louisiana that gave a monopoly on butchering livestock to a company in New Orleans. "Dissatisfied citizens perceived such transactions to confer illicit special privileges on the influential few at the expense of the rest of the people.". 9 These plaintiffs appealed to the supreme Court, and the Court held that the government of Louisiana was within its rights because the "Privileges and Immunities Clause did not protect such fundamental rights as the right to labor". 10 Even though the Slaughterhouse Cases did not themselves start the incorporation process, the dissenting opinions in Slaughterhouse laid a foundation for incorporation.
The first sign of incorporation came in 1897, in Chicago, Burlington and Quincy Railroad Co. v. Chicago. "In this case the Court unanimously held that the Fourteenth Amendment’s Due Process Clause compelled the states to award just compensation when it took private property for public use." 11 In other words, the 5th Amendment’s Just Compensation Clause applies to the State by way of the 14th Amendment’s Due Process Clause. 12
The incorporation process started in earnest in 1925, in Gitlow v. New York. In this case, Benjamin Gitlow, an acknowledged communist, was accused of violating the New York Criminal Anarchy Law of 1902 by publishing communist propaganda. The State contended that he was advocating the violent overthrow of the government. His defense was that he had a 1st Amendment right, by way of the Due Process Clause of the 14th Amendment, to free speech and press. The Court’s majority opinion agreed that he had these rights. The Court in the process defined the incorporation doctrine. But the Court also held that Gitlow did not have the right to advocate the overthrow of the government, and upheld his conviction. 13
Since Gitlow, the Court has exercised a process of selective incorporation. Out of the approximately twenty-five rights in the first eight amendments, all but five have been selectively incorporated. 14 The incorporation process continued in Palko v. Connecticut (1937). By this time the 1st Amendment rights to speech, assembly, and religion had been made applicable to the States, 15 and so was the 6th Amendment guarantee to counsel. 16 But in Palko, "the Court explained that some privileges and immunities in the Bill of Rights were so fundamental that States were required to respect them under the Due Process Clause; other Bill of Rights privileges and immunities were less important, so states were free to disregard them.". 17
A decade after Palko, there were as many as four justices on the supreme Court who claimed, in Adamson v. California (1947), that all rights in the Bill of Rights were incorporated, and the States were mandated to abide by all of them. Even though this claim didn’t prevail in Adamson, "the Court later overruled a number of prior cases (including Palko) and applied almost all guarantees of the Bill of Rights to the states". 18
The following are the clauses in the general Bill of Rights that are still not applicable to the States: (1)grand jury indictment (part of the 5th Amendment); 19 (2)trial by jury in civil cases (part of the 7th Amendment); 20 (3)prohibition against excessive bail and fines (8th Amendment); 21 (4)right to bear arms (2nd Amendment); 22 and (5)prohibition of involuntary quartering of troops (3rd Amendment). 23 The States still reserve State’s rights to do largely whatever they will with regard to these five rights. But regarding all the others, the Supremacy Clause 24 mandates that State courts adjudicate in conformity to supreme Court opinions. 25
From the perspective of the global covenant, none of the rights in the Bill of Rights – except one 26 – on their face, conflict with basic rights that all people have. On their face, it appears to be a good thing that all these rights, excepting this one, have been incorporated. But out of the five that are not incorporated, the failure to incorporate three, on its face, appears problematic. This is because three of the five unincorporated "rights" are basic property rights, and the failure by either the general government or a State government to protect these rights constitutes misfeasance, from the perspective of the global covenant. Grand jury indictment and trial by jury in civil cases are procedures that assist in protecting property rights. But they are privileges dispensed under jural and ecclesiastical compacts. As such, they are not rights, and they are not infallible in their protection of rights. They are merely procedures that help. But the prohibition against excessive bail and fines, the prohibition against violating the right to bear arms, and the prohibition against involuntary quartering of troops, each pertains to basic property rights. When the national government refuses to protect such rights, they in effect indicate that if a State government abuses such rights, the abused victim has no recourse in law. This could cause serious problems.
As we make cursory examination of each of the first eight amendments, we will go beyond looking at the face of these rights, and make cursory appraisal of how the supreme Court has implemented these amendments.