"Enumerated Rights"

And other lies they told me

Reactionaries get a lot of mileage out of the notion that the Constitution “enumerates” (that is, specifies) certain rights and not others. Apparently the Founders (mileage may vary on whether you give a damn what they had to say) gave us a handy list of rights incident to American citizenship, and we ought to think long and hard before we depart from it. That’s why, they tell us, we have to suck up and deal with school shootings—that’s enumerated in the Second Amendment—while women bleed out in parking lots. The boys in wigs and knicks just never scribbled that one down.

In 2022’s Dobbs v. Jackson Women’s Health, nixing Roe’s right to abortion, Justice Alito explained:

[O]ur decisions have held that the Due Process Clause protects two categories of substantive rights. The first consists of rights guaranteed by the first eight Amendments. Those Amendments originally applied only to the Federal Government, but this Court has held that the Due Process Clause of the Fourteenth Amendment “incorporates” the great majority of those rights and thus makes them equally applicable to the States. The second category-which is the one in question here-comprises a select list of fundamental rights that are not mentioned anywhere in the Constitution. In deciding whether a right falls into either of these categories, the Court has long asked whether the right is “deeply rooted in [our] history and tradition” and whether it is essential to our Nation’s “scheme of ordered liberty.” [cue several paragraphs detailing the rigorous analysis for discerning such “unenumerated” rights]

In other words, stuff in that quick and dirty list James Madison scrawled out in 1791, the “Bill of Rights,” gets prime status; everything else, not so much. But that division is horseshit. Historically, there are no enumerated rights.

Now, before getting stuck in, two points are worth mentioning. First, the whole notion of “enumeration” does run headlong into the Ninth Amendment, where James Madison covers his ass and tell us: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Second, and more disturbingly, Alito’s reasonable sounding “history and tradition” and “ordered liberty” devolve to a total rejection of experience, and thus reason, according to his originalist “interpretation” of the Constitution. When Alito equates the inquiry to determining “what the Fourteenth Amendment means by the term ‘liberty,’” he means specifically shackling our understanding of the Amendment to precise historical practice at ratification. If that strikes you as re-legalizing racially-segregated schools and recriminalizing interracial marriage—two unquestioned practices at the Fourteenth’s ratification—well . . . yes.

But put all that to the side. Because Sam, oddly enough, sort of admits that the “enumeration” thing is made up, even if he doesn’t really acknowledge the import of his own words. Recall those favored “rights guaranteed by the first eight Amendments”—

Those Amendments originally applied only to the Federal Government, but this Court has held that the Due Process Clause of the Fourteenth Amendment “incorporates” the great majority of those rights and thus makes them equally applicable to the States.

Stop and read that again. The Bill of Rights originally applied only to the Federal Government. Not to the States. For most of our history those special, preferred, enumerated rights that we’re supposed to care so much about did not apply to your daily life.

---

At the Founding, the Bill of Rights did not apply to the States.

It really cannot be overemphasized: the primary tenet of the American Political Tradition is the States’ primacy in the governance of your daily life. Teddy Roosevelt, for example, would take this tenet for granted in his 1904 speech, more famous for articulating the Roosevelt Corollary to the Monroe Doctrine. “As long as the States retain the primary control of the police power the circumstances must be altogether extreme which require interference by Federal authorities . . . .”

This tradition of State primacy manifest early in the Supreme Court’s 1833 decision: Barron v. Baltimore. The City did some construction on the harbor that diverted a stream and that made the water around Barron’s wharf shallow so boats couldn’t sail up anymore and he got pissed and sued or whatever angry landowners do. (I wouldn’t know. I’m still $150k in student debt for all of this selfless public service I’ve performed.) But as much as the Supreme Court loves property rights, the Justices tossed Barron’s claim. The Fifth Amendment, which prohibits the taking of private property without just compensation, did not apply to the States. In fact, neither did any of the Bill of Rights:

The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution, provided sch limitations and restrictions on the powers of its particular government, as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power; if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes.

The rest of the decision proves just about as repetitive and circular. The Bill of Rights doesn’t apply to the States because it applies to the Federal government, because the Bill is contained in the document that creates the Federal government, which the States all agreed to, and which is the supreme law of the land, but only applies to the Federal government, which it creates, and not to the States which agreed to it, because it applies to the Federal government instead. Frankly, Barron v. Baltimore doesn’t make a lick of sense unless you recognize that the decision means not to tell us anything new but rather to illustrate the primary tenet of our Federalism: the States govern your daily life. So much so, it turns out, that the Bill of Rights does not constrain the States’ control over that daily life. And if that doesn’t scare you (um . . . get help?) this will. Who argued and won Baltimore’s case? Roger mother-“no rights which the white man was bound to respect”-fuckin’ Taney.

Reconstruction Foiled

While you’d be outing yourself as a brand new reader here, you’d otherwise be forgiven for imagining that Reconstruction changed all that State primacy and unfettered control over your daily life. To be sure, Congress really did try, with the Civil Rights Acts of 1866, 1871, and 1875 (which I’ve explained some here and here). But the Court swung back hard (see previous). Even before striking the 1875 Act down in the Civil Rights Cases, even before the Act, the Court had gutted Reconstruction at the first opportunity, 1872’s Slaughterhouse Cases.

In brief, the newly-integrated Louisiana State legislature proposed to relocate all of New Orleans’ butcheries from upstream to a new spot downstream of the City because, well, as Prof. Kennedy taught me in Fluid Mechanics: blood, guts, and shit flow downstream. The largely-white butchers, incensed at being regulated by Black men, sued, claiming that the regulation infringed their right to ply their trade, secured by the Fourteenth Amendment guarantee of “privileges and immunities” of United States citizens. This should have been a forgotten case decided upon routine citations to Blackstone or Coke excoriating us that “a Manne hath notte the right to cause, by his toile in trade, howevere usefulle, the spoiliation of the watercourse to the detrimente of the commonweale.” Instead, the Supreme Court took a blowtorch to Reconstruction. The Fourteenth Amendment did not apply to the case.

Citing Dred Scott v. Sandford (which I’d sworn the Fourteenth Amendment overturned) for the “distinction between citizenship of the United States and citizenship of a State,” Justice Samuel Miller explained that the Privileges & Immunities Clause—“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”—protected only the rights incident to U.S. Citizenship, not the rights incident to State citizenship, that is, those involving your daily life.

Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?

. . .

[S]uch a construction . . . would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights . . . We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.

Simply put, even after Barron’s Federalism led to Civil War, the Court still adhered to the States’ primacy over your daily life. True, Reconstruction brought some limits. But that’s all they would be: limits. State authority to pass Black Codes in the first instance remained. Federal intervention to protect due process and equal protection would come after the fact, as mere correction, not affirmative guarantee.¹

The Backdoor Bill of Rights

Today most of the Bill of Rights does apply to the States, but not because it was written down. Even once the Court admitted in 1908’s Twining v. New Jersey that “it is possible that some of the personal rights safeguarded by the first eight Amendments against national action may also be safeguarded against state action,” the actual application of those rights to the States took place via the process of “incorporation” of the Bill of Rights, component by component, via the Fourteenth Amendment’s Due Process Clause (if this sounds backasswards, that’s because it is). And even then, significant resistance remained.

In 1937 the Court declined to incorporate the Fifth Amendment’s protection against double jeopardy against the States. Justice Cardozo conceded that the Due Process Clause included “principles of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental” and “implicit in the concept of ordered liberty.” He just didn’t think double jeopardy ranked as that important. Similarly, in 1947’s Adamson v. California, Justice Reed dismissed a claim that the Fifth Amendment protected criminal defendants against self-incrimination in State criminal trials. Justice Frankfurter concurred:

For historical reasons a limited immunity from the common duty to testify was written into the Federal Bill of Rights . . . But to suggest that such a limitation can be drawn out of “due process” in its protection of ultimate decency in civilized society is to suggest that the Due Process Clause fastened fetters of unreason upon the States.

Barron—alive and kicking in the Nuclear Age.

Ultimately the incorporationists won out and all but the Third Amendment, Sixth’s grand jury, and Seventh’s guarantee of a civil jury now bind the States. The most recent addition to the list of incorporated rights came in 2018’s Timbs v. Indiana, where Justice Ginsburg explained that the Eighth Amendment’s guarantee against excessive fines “is ‘fundamental to our scheme of ordered liberty,’ with ‘deep roots in our history and tradition.’” But it really has to be repeated: today the Bill of Rights applies to the States not because they are “enumerated” but because the Justices consider them to be really, super-duper important.

---

In many regards, Justice Alito’s reliance on certain rights’ “enumeration” in the Constitution counts against their being more important or legitimate than a right to abortion, or contraception, or interracial marriage, or integrated schooling. So far from reflecting a list of rights the Founders thought truly fundamental to American citizenship, the Bill of Rights rather reflects a list of rights the Founders (and many subsequent generations) considered and determined inapplicable to the contours of your daily life. Better to be unenumerated, then, than to be so devalued.

But perhaps we don’t have to go that far. Justice Alito tells us in Dobbs that claimed rights must be “deeply rooted” in our “history and tradition,” as evinced by historical practice at ratification. Suffice it to say that, if “history and tradition” have any meaning, there are no such things as “enumerated rights.” An originalism that rejects the right to abortion on such grounds must necessarily reject application of the Bill of Rights to the States. But if we yet demand those “enumerated” rights, and if the only reason that those rights of speech, assembly, guns, and all aspects of criminal procedure apply to the States today is that those rights have been separately determined fundamental to our history, tradition, collective conscience, and notions of ordered liberty, then the test applicable to the first Eight Amendments ought to be applicable to the Ninth and the Fourteenth. Perhaps I’ve become a broken record on this point, but . . .

1. One might stretch Slaughterhouse so far as to read its implied abrogation of Barron. If the Fourteenth Amendment protects Federal rights, it might someday protect the Bill of Rights. But Miller makes clear that proposition lies far off in the future. His list of rights secured against the States makes no mention of the Bill:

It would be the vainest show of learning to attempt to prove by citations of authority, that up to the adoption of the recent amendments, no claim or pretence was set up that those rights depended on the Federal government for their existence or protection, beyond the very few express limitations which the Federal Constitution imposed upon the States—such, for instance, as the prohibition against ex post facto laws, bills of attainder, and laws impairing the obligation of contracts. But with the exception of these and a few other restrictions, the entire domain of the privileges and immunities of citizens of the States, as above defined, lay within the constitutional and legislative power of the States, and without that of the Federal government.