People get very upset with me when I insist that the Bill of Rights was not meant to operate on the states.
But there exists no evidence that it was ever intended to do so. The preamble of the Bill of Rights makes its purpose clear – “The Conventions of a number of the States… expressed a desire , in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added.”
‘It’ clearly refers to the federal government created by the Constitution.
Here’s where people tend to miss my point. I’m not saying state governments should have the power to willy-nilly trample our inalienable rights. What I am saying is that the founders NEVER intended the federal government to police the states and operate as the liberty enforcement squad. In fact, Madison pushed for federal veto power over all state laws during the Philadelphia Convention. That idea was rejected -several times!
When a state government violates a right, the people should fight the battle in the proper arena, through the state constitution and its declaration or rights. That means working through the state courts, the state legislature and the state constitutional amendment process.
Dragging the feds into it allows them to exercise authority they don’t rightly possess. It’s a little bit like letting a hockey referee issue traffic tickets. He doesn’t have the authority. He certainly possesses authority at the hockey rink, but it cannot extend outside of its proper arena. Chief Justice John Marshall was a friend of expansive national power, but even he recognized that federal policing of “rights” obliterates the division of powers in the American system.
The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution, provided such limitations and restrictions on the powers of its particular government, as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes.
Those who continue to insist that the federal government should step in and serve as a liberty enforcement squad are federal supremacists. They seek a consolidation of power at the federal level. Perhaps they seek centralized power for a good cause – but they are federal supremacists none-the-less.
And they play a fools game!
