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Again, as one who has made an intense historical study of the way the
Bill of Rights were written, documented in part at http://www.constitution.org/dhbr.htm
, I must disagree. Most people who hold the orthodox position have not,
as far as I can tell, investigated the subject to a comparable depth.
If commentators rely only on the opinions of those whose opinions are
based on still other opinions, and do not return to primary sources,
their positions should not be accorded any weight of authority,
especially when anyone may read the primary sources for himself. To understand the Bill of Rights, and what effect their adoption may have had on the jurisdiction of federal courts, one has to begin with the state ratifying conventions, the amendments each such convention proposed, and the historical backgrounds of those proposed amendments, which is a rich history, indeed. You can't get that from reading court opinions, which make historians cringe. But to keep this message short, just consider the following points: 1. The language of the articles of the BoR, both as originally proposed by Madison, and as modified, are, except for the First Amendment, similar in form to that used in Sec. 9 and 10 of Art. I, which can be taken as stemming from Madison's intent to insert them there, but the decision not to insert them, but to append them, can be taken as a decision that they were not just restrictions against the national or state governments, but both levels of government, for which a section did not exist. 2. The introduction of a separate version of what became the first amendment, to restrict the states, and not amendments corresponding to each of the others, to do so, when those rights, as natural or social rights that preceded government, were deemed to apply not just to the states, but all governments everywhere at all times, past, present, and future, and stating them in terms that do not restrict them to Congress, can only reasonably be understood as applying to all government at all levels. 3. In Art. III Sec. 2, the U.S. Constitution states, "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution..." That is the basis for "federal question" jurisdiction, which can include cases between an individual and his state, such as those arising from Art. I sec. 10, but did the articles of the BoR extend that jurisdiction to their questions? 4. In Art. V we have, "... Amendments to this Constitution ... shall be valid to all Intents and Purposes, as Part of this Constitution ..." So if a judicial case can be framed in terms of one of the BoR, it becomes a federal question, even if it is between a citizen and his state, just as would be for provisions of Art. I Sec. 10. 5. Since every right is a restriction on government powers, and we have the ancient common law rule of construction, stated in two maxims:
Q.E.D. Volokh, Eugene wrote:
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