In Blood and Ink: The Life and Documents of American Democracy

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. First Amendment to the Constitution.

Now———

At the very outset we must understand that the Bill of Rights does not protect the American citizen from infringement by states or their subdivisions. [Certain rights which happen to be in the Bill of Rights have been recently written into the Constitution by the Supreme Court. But it was not done through the Bill of Rights, but the Fourteenth Amendment, which will be covered later. It is important to keep in mind that the Bill of Rights is only to protect citizens as against the federal government, and not the states or their subdivisions.] The Supreme Court early decided, in the case of Barron vs. Baltimore, that the protection of liberties would not be afforded as against states. Chief Justice John Marshall said in that case, "Each state established a Constitution for itself, and in that Constitution, provided such limitations and restriction on the powers of its particular government as its judgment dictated."

Right of trial by jury, and the various other rights are therefore not protected under the Bill of Rights as to actions against citizens by states. Thus if a state deprived a person of his rights under the Bill of Rights, he could get no relief by appeal to the federal Courts. In fact, he probably could not even get into a federal Court.

The federal government does not protect even the freedom of religion from invasion by a state or a subdivision of a state. [In 1934, in Hamilton vs. California, 293 U. S. 245, there was an implication that religious liberty is protected against state encroachment. That, however, is all.] The states can infringe upon such rights if they so desire. The Supreme Court has held that, "Neither the original Constitution nor this amendment [the First] makes any provisions for protecting the citizens of the respective states in their religious liberties. . . ."

Since the matter just quoted is still the law, the historical facts are worth inspection. State churches existed long after the adoption of the Constitution. In fact, in several states which had state churches devotees of certain religions not favored by the state were treated with great severity. These state churches existed until 1817 in New Hampshire, 1818 in Connecticut, and 1833 in Massachusetts—twenty-eight, twenty-nine, and forty-four years, respectively, after the adoption of the Constitution.

All this is important because the religious liberty of these states was based on certain "established" vested rights. Congregational ministers and their flocks had been revolutionists. So, when independence came, they demanded liberty—for themselves—as the state church. On the other hand, in Virginia the Episcopal ministry had been for the most part Tory. The people of Virginia consequently achieved separation of church and state (just before the federal Constitution was adopted).

In neither instance did the federal government have any say. And even today, by holdings of the High Court still in effect, any state could establish a state church and levy taxes for its support. There is danger in this situation because if economic conditions should become worse, there will be the inevitable attempts to make religious and other minorities the scapegoats. In some states, the persecution may become "official" and "legal" in the form of a state church supported by taxation upon all citizens.

In speaking to hundreds of audiences over the country, I have become convinced that nearly 100 per cent of the people honestly believe that all their rights are protected from invasion from any part of the government, national or state, by appeal to the Supreme Court. This is not true, and we should keep that in mind.

Let us consider the Bill of Rights.

It was certainly no Table of Liberty graciously handed down by the Founding Fathers. As we have seen, the people had to put on heavy pressure to get it—the only thing they did get other than an implied confirmation of the liberties which they already enjoyed. And the Bill of Rights was actually no more than a written guarantee of some of those Anglo-American liberties.

It is quite true that the people feared the new federal government—feared that it would become too centralized and powerful. That is the reason that the Bill of Rights was applicable solely to Federal agencies.

Historically, however, liberty of speech and press was founded upon the abandonment of the censorship and printer's license laws of England. But the American people had just gone through a revolution, and the ordinary plowman and villagers as well as intellectuals like Jefferson, did not want to exchange old tyranny for new. They wanted practical freedom, not theoretical constitutional rights. They wanted both land and liberty. As Mr. Justice Brandeis said in Whitney vs. the People of California (1927), "Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty."

Those of our ancestors who were really the revolutionists wanted the utmost liberty of speech and press. Such liberty meant then, and means now, that one can advocate anything. [Subject, of course, to the laws of libel, slander, obscene utterance, incitement to violence and treason.]—whether reactionary, radical, or merely crackpot—a king, Coxey's Army, Wall Street government, communism, fascism, or the repeal of liberty itself. It is clear that the framers of the Bill wanted no revolutions in the future. They knew that citizens of a democracy with complete freedom to agitate for political change, and above all with true economic opportunity, have no cause to revolt. So the authors of the Bill of Rights placed on paper no limits on these basic human motives—no federal government limits, that is. But, insofar as the Bill of Rights of the federal Constitution is concerned, a state could deprive a citizen of his liberties, and can now.

So, to say that the Bill of Rights "incorporated and preserved the inherited liberties of the centuries," is, from a practical viewpoint, more oratory than truth. At the time of the adoption of our Bill of Rights, Britain had one government, and neither the City of London, nor Glasgow, nor any subdivision of Great Britain could deprive a citizen of his constitutional rights. But in our dual system of government, with national and state sovereignty, the national government guaranteed liberty under the federal Constitution against invasion by the federal government only, while a state might violate its citizens' liberty at will.

If we call ourselves a democracy, we cannot permit a citizen to be persecuted by any one of the governments, state or national. We shall see that in 1886 under the Fourteenth Amendment the Supreme Court, by declaring state laws regulating corporations and monopolies unconstitutional, acted to protect the liberties of big business as against states; but it did not at the same time act to protect the civil liberties of American citizens as against states.

In all ages government has acted in the last analysis as the agent or instrument of economic power—of those who owned the land. It is idle to talk of human rights as separate from economic rights. Throughout history idealists have fought—with arms and with ballots—for human rights. But the people have won and retained their rights—their civil liberties—only when they have won some measure of economic power, and consequently some voice in their governments.

It is principally in the last five or ten years that the Supreme Court has begun to recognize the civil liberties of the people, and the extensions have been significant. These have followed extensive economic (wages, employment, prices, working conditions, housing, and the like) and political gains made by the people through their labor, farmer, small-business, and unemployed organizations. But we shall consider the whole matter more fully in a later chapter ("Civil Liberties Today").

Let us get back to the time of the ratification of the Bill of Rights, to the young nation. The War of 1812 has not yet been fought; let's fight it, push back the Indians, gobble up half of Mexico, and then wade through our own blood in the Civil War.

The sun of the nineteenth century is rising. It is 1800, and we still have only the territory of the thirteen little British Colonies that became the United States of America. But soon we will hear the beating, then the roar, of the drums of empire.