The Bill of Rights before the Civil War: State Sovereignty, Strict Construction, and the Presumption of Constitutionality

Abstract

Excerpt from introduction: Anti-establishment at issue in American Legion is one of several First Amendment principles. In other areas of First Amendment jurisprudence, Free Exercise and Free Speech cases, the modern Supreme Court asks whether the government regulation unnecessarily restricts religious liberty or free speech. In a common constitutional query for adjudication of these questions, the Court first asks whether the right at issue is fundamental. For “fundamental guarantees,” of which Free Exercise and Free Speech qualify, the Court applies a heightened level of strict scrutiny against the state or national regulation, permitting only those regulations or actions for which the government proves that a compelling state interest is at issue and that the regulation is narrowly tailored to meet that government interest. As discussed below, the Supreme Court’s First Amendment jurisprudence contrasts sharply with the Bill of Right’s design and early interpretation. Matters concerning religion, speech, and press were reserved for the states. Through generations of precedents, the modern Supreme Court has inverted the Bill’s purpose. Below, I discuss the framing of the Bill, state sovereignty, strict construction, and the presumption of constitutionality. In the process, I examine early case law on the Contract Clause and the controversial Alien and Sedition Acts — one of the first major constitutional challenges where these views were examined.