State Bills of Rights Have the Real Protections

By presidential proclamation, December 15 is Bill of Rights Day. President Donald Trump urges Americans to take time to “recognize the key role of the [federal] Bill of Rights in protecting our individual liberties and limiting the power of government.”

While we are better off for having the first ten amendments to the Constitution, it is intellectually dishonest for the media and our national leaders to pay such obeisance to the Bill of Rights. The Bill of Rights is a mere shadow of the protections the states originally urged Congress to pass and pales in comparison to the rights guaranteed in many state constitutions.

James Madison, the primary architect of the Bill of Rights, merely sought to mollify Anti-Federalist critics of the Constitution without imposing real limits on the powers of the federal government.

The various states had sent Congress many substantive amendments that would have limited federal power and protected individual liberty. For example, Virginia offered a lengthy amendment aimed at limiting federal judicial power. Massachusetts suggested amendments on the power of taxation as well as prohibiting gargantuan congressional districts, where the people would have little chance of truly knowing their representatives. New York wanted an amendment requiring two thirds of Congress to approve any borrowing on the credit of the United States.

Unfortunately, Madison and Congress ignored these proposals. Madison followed the advice of Samuel Johnston, the governor of North Carolina, who had counseled that amendments should be “a little Flourish & Dressing” and no more.

Americans desiring real protections and limits on federal power were not deceived by the final product. Virginian William Grayson, writing to Patrick Henry, complained that Congress’s proposed amendments “are so mutilated & gutted that in fact they are good for nothing.” Theodorick Bland of Virginia lamented that the congressmen “have not made one single material” alteration to the Constitution. South Carolina’s Thomas Tudor Tucker thought the amendments sent to the states were “calculated merely to amuse, or rather to deceive.”

Amusement and deception aside, today, when we think of the Bill of Rights and landmark cases, we typically think of restrictions on state power. It does not occur to modern Americans that the Bill of Rights originally applied only to the national government. As the preamble to the Bill of Rights declares, “further declaratory and restrictive clauses” were adopted because the state conventions wanted some security to “prevent misconstruction and abuse of” powers delegated to the national government. The people of the states were satisfied with their own bills of rights and restrictions on state power appearing in the various state constitutions.

It was not until 1925 that the U.S. Supreme Court began applying selected provisions of the Bill of Rights against the states – a practice that is still questioned by a number of legal scholars.

While most Americans have some general familiarity with notable provisions of the Bill of Rights, such as guarantees to free speech, the right to bear arms, and the free exercise of religion, it’s doubtful they have any comprehension of what is contained in the bills of rights of their home states. This is a pity. Most state bills of rights have far more extensive protections than those found in the federal version.

For example, in addition to the “usual” protections associated with its federal cousin, New Hampshire’s bill of rights recognizes that the people possess the “natural rights” of acquiring and using property; are entitled to an “open, accessible, accountable and responsive” government; and have a constitutional right to revolution if government becomes oppressive. South Carolina’s bill of rights provides constitutional protections for crime victims, prohibits imprisonment for debt, and guarantees court review of the decisions of administrative agencies. California’s bill of rights specifically secures the property rights of noncitizens, the right of a victim to receive restitution from the perpetrator of a crime, and the right to have all relevant evidence introduced in criminal proceedings.

Americans should pause on December 15 and contemplate their rights. But their time would be better spent on the texts of their state constitutions rather than idolizing the “Flourish & Dressing” of James Madison’s offering.