Very few Americans realize this important fact: Almost all the individual rights and liberties enjoyed in this country today were created by the federal judiciary. At the time of the Constitution’s ratification, a few rights mentioned in Article I Section 10 were guaranteed to U.S. citizens.
The adoption of the Bill of Rights in December 1791 did not create any new individual rights because it limited only the national government. This was made crystal clear in Barron versus Baltimore (1833). Religious liberty and the other rights were enjoyed only if your state decided to grant those rights.
Mormon history illustrates that, until states were specifically forbidden from infringing on religious liberty, religious minorities might not enjoy religious liberty. Thus in 1840, when Mormons submitted a “lengthy and eloquent petition” to the U.S. Senate Judiciary Committee, detailing the wrongs and injustices done against them by Missouri officials, the committee unanimously reminded them that they had not alleged anything unconstitutional, as their petition failed to allege national government wrongdoing.
A state prohibiting a religion no more violated the First Amendment’s religious liberty than a father prohibiting profanity from his children violated their First Amendment’s freedom of speech because, by definition, only Congress could violate the First Amendment. A half century later, in 1890, a conservative Supreme Court, guided by earlier precedents, upheld an Idaho policy which denied Mormons the right to vote or hold elective office. States could operate in a tyrannical manner against any minority they chose to oppress.
Similarly, there was no individual right to own guns. Thus states could bar African Americans from owning guns. In U.S. versus Cruikshank (1876) the court explicitly stated the Second Amendment, “means no more than it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government.” Individual gun rights were created in 2008 (District of Columbia vs. Heller) when five members of the Supreme Court discovered or created an individual right that no court in the 1700s, 1800s or 1900s had ever recognized.
Individual rights are created by diminishing state powers. If, in 1890, the court had liberally construed the First Amendment and created religious liberty as the Mormons wanted, the majority of Idaho voters would have had their prerogatives diminished. Idaho’s duly elected officials might have as deeply resented the federal intrusion on behalf of the Mormons, much as southern state officials resented federal intrusion on behalf of African Americans in the 1960s.
When individual rights are created it tends to federalize those rights and expand federal oversight and regulation over the states. Through the 1800s, conservatives wanted to limit the national government and keep power in the hands of the states. Thus they resisted expanding individual rights that would be enjoyed by all people. Had individual rights been created, they would have protected religious and racial minorities — people the dominant groups viewed as the “wrong people.”
Throughout the 1800s, both state and federal courts would summarily dismiss any notion of individual rights based on the first eight amendments of the Bill of Rights. If the Supreme Court had always been staffed by conservatives following legal precedents, today there might be almost no individual rights. Probably 95 percent of the rights enjoyed today were created after 1900 by courts with a majority of civil libertarians rejecting earlier conservative precedents.
I believe that those who clamor for a restoration of the way it was at our nation's inception are unaware that would entail giving states despotic powers.
Rick Edwin Jones, West Haven, holds a master’s degree in political economy from the University of Utah and teaches economic history at Weber State University.