The Framers' Views of Restraining State Sovereignty

Incidental to a discussion on standing in today's Federal Courts class, Professor Caleb Nelson presented a view of the 1st Amendment's Establishment Clause as a purely federalist protection. Under this view, the clause prevents Congress from both forcing or prohibiting a state from endorsing or not endorsing a particular religion. Likewise, it cannot declare an official national religion as this would preempt the states' power to choose their own. This would, of course, mean that the 1st Amendment would have no problem with a particular state, say Virginia, declaring that Episcopalianism is the official state religion. In fact, it was intended to protect that precise choice.

Now this is clearly not the present understanding of the Establishment Clause. It is now widely viewed as a protection of individual liberty, enforceable against both federal and state governments. Yet the federalist theory raises some interesting historical questions about which I have remained largely ignorant. Whether the 1st Amendment was originally intended to protect the states against the federal government, or the people against the federal government, the one thing it clearly did not do was protect the people against the states. So the obvious question is this: what was going to protect the people against the states?

My understanding is that the traditional answer, and the one I've been unquestionably following my whole life, is that the Framers' held a belief that the very nature of state government, due to its proximity and accountability, would restrain it from infringing on the types of liberties with which no government (whether state or federal) should interfere. Yet this view includes at least two assumptions which I think ought to at least be questioned: 1) that the Framers' really did believe that there were rights which even the states ought not be able to infringe upon; 2) that the very nature of state government would prevent such infringement. My discussion of these two prongs is going to be interrelated, but I'll try to parse it out a little.

I'm not at all familiar with the alternative view of the first prong, but it apparently goes something like this: what the Framers' were most concerned about was not the protection of individual liberties against all infringement by any government, but the infringement by governments which are distant (even "foreign") and unaccountable to those they seek to govern. This might be best represented by the classic grievance of "no taxation without representation." Here the complaint is not necessarily a libertarian claim that taxation is somehow incompatible with the proper role of government, but merely that it is a power that can only be wielded by a government properly answerable to those it seeks to tax.

Under this view, the Constitution generally, and the Bill of Rights in particular, should not be seen as limiting the federal government so as to protect individual rights of the people from all regulation, but merely to ensure that such regulation is conducted by state governments. As such, these Framers' might have no legal qualms with Virginia having an official state religion, or New York imposing prior restraint rules, or Pennsylvania police conducting all searches and seizures without warrants. See, for example, Article III of the Massachussetts Constitution:

[T]o promote their happiness and to secure the good order and preservation of their government, the people of this Commonwealth have a right to invest their legislature with power to authorize and require, and the legislature shall, from time to time, authorize and require, the several Towns, parishes, precincts and other bodies politic, or religious societies, to make suitable provision, at their own Expense, for the institution of Public worship of God, and for the support and maintenance of public protestant teachers of piety, religion and morality, in all cases where such provision shall not be made voluntarily.

Keep in mind that this claim would not be inconsistent with particular Framers' opposing such laws on policy grounds. The claim is merely that they would not think it outside the sovereign power of a state to have such policies.

The second prong suggests that, assuming that the Framers' did want the states to refrain from infringing on these rights (unlike the view just articulated), it was the very nature of state government that would guarantee this restraint. This is a pretty broad articulation, and I'm not sure how closely this really tracks the traditional view. But I'd like to at least explore a couple possible interpretations and the implications of them.

The first possible interpretation is that state legislatures would themselves be restrained, because the legislators are so proximate to their constituents and thus very accountable to them. This is an appealing belief, and would seem to fit nicely with many modern day federalists' and their longing for a shift of power to state legislatures and more local governmental bodies (city councils, school boards, etc.). Yet this view seems inconsistent with the existence of state constitutional provisions securing many of the same liberties as the federal Constitution seems to do. If the Framers' really trusted state legislatures, would any of the various state constitutions have included provisions guaranteeing the freedom of speech, the right to a jury, the prohibition on capital punishment, as the Virginia Constitution does? Additionally, would it really make more sense to read the 1st Amendment as protecting the states against the federal government, and the Virginia Constitution as protecting the people against the state, rather than reading both as protections of individuals against two different sovereigns?

Of course, another interpretation of this presumed trust that state governments will be able to restrain themselves might actually proudly present the various state constitutions as evidence that the people of the state, if not the legislature itself, are fully capable of enshrining the various protections. This view might be questioned a bit if one sees, for example, a tension between the individual freedom of religion and the provision of the Massachussetts Constitution quoted above. Compare that provision to Article I, Section 16 of the Virginia Declaration of Rights:

That religion, or the duty which we owe to our Creator and the manner of discharging it, can be directed by reason and conviction, not by force or violence; and therefore, all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.

And this brings us back to the first prong, I think. To the extent that these disparate approaches to the protection of freedom of religion at state level would be acceptable to the Framers', I think it supports a view that they were concerned not so much with a particular vision of individual liberties as with the protection of the states' sovereign power to make unique and independent determinations of how to regulate those rights. To the extent that a particular Framer would think that Massachussetts' approach is an unacceptable infringement on the individual right of religious freedom, than we ought to be able to gather two things about his views: 1) the Bill of Rights does not merely protect spheres of state power from interference from the federal government, but in fact articulates and protects individual liberties; 2) to the extent that a state like Massachussetts has failed to refrain from interfering with those rights, it represents a failure of the theory that states are somehow inherently restrained from such behavior. This latter point, I think, is likely the source of much of the modern opposition to calls for "states' rights," and is now felt to be largely supported by the experience of slavery to some extent, but especially the experience of Jim Crow.

I don't have any conclusions to draw from this discussion, it is simply a series of issue I've not really had raised in my academic experience. Were the Framers' as truly committed to individual liberties as our modern day heroic view suggests? Or were they more interested in guaranteeing state sovereignty, and less concerned with whether the states would use that power to infringe on the rights we so cherish today? And to the extent that some of the Framers (and here I should explicitly acknowledge that much of the confusion may be caused by the fact that many of the Framers held very different, often conflicting views and theories of government) were committed to individual rights, but failed to enact Federal Constitutional provisions protecting these rights against state interference, was it the result of simply having misguided views about the likelihood of state self-restraint? Was this caused by naivety? Knowledge of a need to compromise with other factions in the Constitutional Convention?

Any guidance, answers, or suggested reading would be most welcome.

UPDATE: Several people have written to recommend Akhil Amar's The Bill of Rights, which fortunately for me is sitting on my shelf right now. I guess it is time to take it off the shelf.