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12 Second Wind for the State Bill of Rights  .  Remarkably for a nation whose constitutional framework changes only slowly, Americans experienced in less than half a century two dramatic reversals in the relationship between state protection and federal protection of individual liberties. During the middle of the twentieth century, federal doctrine nearly eclipsed state constitutional law, and then by the end of the century the latter had reclaimed much of the high ground it formerly occupied. Some of this shift was due as much to institutional competition as to jurisprudential evolution. From the nation’s founding until roughly the opening of the twentieth century, state constitutions and their accompanying bills of rights were the leading sources of law in the defense of citizens’ rights. Thereafter began a process by which federal jurisprudence and federal court authority came to overshadow state constitutional rights, slowly at first and then accelerating until the 1970s. It was a curious phenomenon in light of the post-colonial debate over whether there should even be a federal list of rights in the Constitution of the United States. Early Americans saw little threat to their liberties emanating from state capitals, but they feared unchecked power exercised by a new and distant sovereign. The Anti-Federalists had attacked the constitution of 1787 on the grounds that it would afford the new national government too much control over the lives of individual citizens. It was only late in the campaign for ratification that the Federalists pledged to support a federal bill of rights, thus helping bring the last two key states, Virginia and New York, into the new union. Fear of national power and affection for state governments were so strong that even the prospect of amendments spelling out individual freedoms was barely enough to carry the day: ratification forces prevailed in New York by just three votes. As people like Thomas Jefferson, Roger Sherman, and James Madison began to ponder the shape such federal guarantees should take, there were plenty of models from which they could borrow. Part of the reason Americans worried little about state governments was that most state constitutions written in the post-revolutionary period contained rights guarantees that obviously predated the Constitution of 1787. The earliest of these was the Virginia Declaration of Rights in 1776, adopted three weeks before the Declaration of Independence. Many provisions in the Virginia Declaration and other such charters became part of the federal amendments eventually proposed to the states. Notwithstanding the prompt adoption of ten amendments to the federal Constitution, the bills of rights in the state constitutions remained the principal force in American civil liberties for a century and a half. Madison had argued that the federal restraints should bind both national and state governments , but he did not prevail. The First Congress, taking up these questions in 1791, specifically rejected efforts to insert provisions in the Bill of Rights limiting state authority.1 If there had ever been any doubt that the federal Bill of Rights was not a limitation on state activities, that doubt vanished when the U.S. Supreme Court heard a case in which one John Barron argued that the City of Baltimore had violated his rights under the Fifth Amendment by taking property without compensation. Chief Justice John Marshall was not impressed: “The question thus presented is, we think, of great importance , but not of much difficulty.”2 Marshall made quick work of Barron’s claim: “Had the framers of these amendments intended them to be limitations on the powers of the State governments they would have imitated the framers of the original Constitution, and would have expressed that intention .”3 Even after the adoption of the Thirteenth, Fourteenth, and Fifteenth Amendments following the Civil War, federal due process and equal protection were deemed to require only that state procedures provide for fundamental fairness, not that they embody specific guarantees in the same manner in which they were written in the Bill of Rights. In the familiar Slaughter-House Cases of 1873, the Supreme Court held that the Fourteenth Amendment did not add to any rights, privileges, or immunities of the citizens of the several states.4 Twelve years later, in Hurtado v. California, the Court declared that “[d]ue process of law” referred to “that law of the land in each State, which derives its authority from the inherent and reserved powers of the State.”5 242 | RIGHTS REMEMBERED, REVISED, AND EXTENDED Americans who thought their rights had been violated regularly...


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