1. I have never heard of any evidence that the decision to append the
amendments to the end of the Constitution, rather than to insert them, was
understood by either the Framers or by those who ratified the Amendments or by
anyone else around the time of the Framing as "a decision that they were ...
restrictions against ... both levels of government," or to be precise that some
(amendments 2 through 8) were and some (the various provisions of amendment 1)
weren't. Note also that there was already a well-established way of providing
for restrictions against both levels of government that wouldn't require
appending: Specify the restrictions both in article I, section 9 and article
I, section 10 (as was the case for the ex post facto clauses, the bills of
attainder clauses, and the titles of nobility clauses).
2. That a right is understood as a natural right that bound the states
doesn't tell us whether it was seen as a prohibition that was part of the
*federal* constitution. Madison obviously thought that some natural rights
that bound the states should be enacted as part of the federal constitution,
and others left solely to the state constitutions. The drafters of the
original constitution included one right that ended up in the Bill of Rights as
Well as binding the federal government (such as the jury trial provision of
article III) but not states. Even those who treat amendments 2 through 8 as
binding on state governments acknowledge that the Framers didn't make the
natural rights in amendment 1 (even setting aside the Establishment Clause)
binding on state governments as part of the federal constitution. So that a
right is a natural right tells us nothing about whether the Framers prohibited
its abridgment by states in the federal constitution.
3. I'm not a federal courts maven, but it's pretty clear that a
violation by a state of a provision of the federal constitution involved a case
arising under the Constitution. See Trustees of Dartmouth College v.
Woodward, 17 U.S. 518, (1819). I don't see why it should be different under
the Bill of Rights. It's just that the Bill of Rights imposed -- as a
substantive matter, not just a jurisdictional matter -- federal restraints only
on the federal government, not on states.
Eugene
Jon Roland writes:
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:
1. Potestas stricte interpretatur. A power is strictly interpreted.
2. In dubiis, non præsumitur pro potentia. In cases of doubt, the
presumption is not in favor of a power.
Therefore, any assertion of a right is to be construed as restricting
government powers to the narrowest extent the language allows, and that
includes all governments the language does not forbid it to be applied to.
Q.E.D.
Volokh, Eugene wrote:
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