Читать книгу American Democracy in Context - Joseph A. Pika - Страница 131

Just as it is hard to imagine our Constitution without a Bill of Rights, so it is hard to imagine our Bill of Rights not protecting individuals from state laws that infringe upon their liberties. And yet the Bill of Rights was originally thought to limit only the power of the national government—not the power of the states. States’ rights advocates, in particular, had pushed for a Bill of Rights to prevent the new national government from encroaching not only on individual rights but also on the power of the states.

It is telling that James Madison’s proposal that the Bill of Rights include an amendment that said, “No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases” was rejected.¹⁴ Instead, the First Amendment clearly states, “Congress shall make no law.” And even though the remaining amendments seemed more general (the Sixth, for example, says, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury”), the common understanding was that these guarantees applied only to actions by the federal government, such as federal criminal prosecutions.¹⁵ Thus, after the ratification of language in the First Amendment—“Congress shall make no law respecting an establishment of religion”—seven states (Connecticut, Georgia, Maryland, Massachusetts, New Hampshire, South Carolina, and Vermont) continued to maintain some form of religious establishment.

In the 1833 case Barron v. Baltimore, the U.S. Supreme Court reaffirmed the view that nothing in the Bill of Rights limited state action. Chief Justice John Marshall wrote the opinion in Barron. Given what we know about Marshall, his ruling might seem surprising. He was, after all, an ardent Federalist who did much in other cases to strengthen the national government at the expense of the states. Why would he write an opinion that vindicated states’ rights? It may simply be that the answer was so obvious and the intent of the framers so clear that the outcome was preordained. As Marshall himself put it, the legal question presented was “of great importance, but not of much difficulty.”¹⁶ But there was another issue—one not directly raised in the case—that may have influenced the Court: slavery.

The reality of slavery is impossible to reconcile with the concept of liberty espoused by the framers. And yet many framers, including James Madison and Thomas Jefferson, owned slaves. As discussed in Chapter 5, the Constitution did not use the word slavery, but it nonetheless endorsed it in several ways. Madison himself had reassured the Virginia ratifying convention that nothing in the proposed Constitution would interfere with slavery in the states.¹⁷

By the time the Supreme Court decided Barron v. Baltimore, slavery had become a hot-button issue. Abolitionists were mobilizing. The Liberator, an important anti-slavery newspaper, had begun publishing in 1831. Fearful that the rising tide of abolitionist literature might lead to slave rebellion, southern states began around 1830 to adopt laws that restricted freedom of speech and of the press.¹⁸ Discrimination against blacks had been taken for granted. Now it was spreading to whites who spoke out on their behalf. Had Barron extended the Bill of Rights to state action, these laws would have been called into question, possibly precipitating civil war. Thus, as the noted constitutional historian Michael Kent Curtis put it, the decision in Barron arguably promoted “the stability of the Union at the expense of liberty.”¹⁹

In the coming years, state restrictions on civil liberties intensified. For example, Virginia made it a felony for abolitionists to enter the state and speak in favor of abolishing slavery or for anyone to circulate books that denied the right to own slaves. By 1859, Virginia had even banned the New York Tribune. Missouri not only imposed severe penalties for expressing anti-slavery views but required that state officeholders take an oath to assure that they supported slavery. In North Carolina, a man was convicted and sentenced to a year in prison for distributing to fellow whites an anti-slavery book that Republicans were using as a campaign document in 1858. Mob violence against abolitionists was also on the rise.²⁰ And through it all, the Bill of Rights of the United States Constitution offered no protection.