[Brion McClanahan]

Kathy:

One of the primary arguments against a Bill of Rights from 1788-1791 focused on the understanding that every State already had a bill of rights and therefore another enumeration would be unnecessary. The Bill of Rights, as ratified in 1791 and as clearly stated in the Preamble to the BOR, applied only to the general government, not the States. They were restrictive clauses on the central authority. States would and could have a State church for example (three did) and could abridge freedom of speech (a common argument made in 1798 when Congress passed the Sedition Act), but the general govt could not. Remember, the 1st Amendment states, “Congress shall make no law….” Madison also attempted to insert an incorporation amendment into the BOR but that failed in Congress.

As for the 14th, it was not intended to incorporate the BOR into the State constitutions when it was ratified. That is clear from the record. Incorporation was only done by SCOTUS later, so the TAC is taking the correct position–as usual–on the issue. It may not always be popular, but it is correct.

Hope that helps. I am sure Kevin will have more to say.