Why the Bill of Rights Exists—and What It Really Limits

Start with a myth-buster: the First Amendment wasn’t originally first. We open the door to the real story behind the Bill of Rights—how a wary public demanded assurances, how Madison turned state models into national guarantees, and why the most overlooked provisions may be the ones that guard your freedom most effectively. Together we map the logic that shaped the first ten amendments: eight that name individual rights and two that anchor the Constitution’s core design—limited, enumerated federal powers.

We walk through the bargain that secured ratification, the early view that the Bill of Rights constrained only the federal government, and the turning point that arrived after the Civil War. The Fourteenth Amendment promised a new layer of protection, but the courts took a circuitous route to get there, using the due process clause to selectively incorporate rights against the states starting in the 1920s. Along the way, we show how this created a two-tiered shield: federal rights set the floor while state constitutions can go further—sometimes requiring warrants where federal law allows exceptions or expanding speech protections beyond national baselines.

If you’ve ever wondered why the Ninth and Tenth Amendments seem murky, or why debates over “federal versus state power” matter to your daily rights, this conversation brings clarity. We highlight the founders’ deeper strategy: structure first, rights second. That structure—federalism, enumerated powers, and the reservations in the Ninth and Tenth—was designed as the primary defense for liberty, with the listed rights as a safety net. Stay with us as we kick off a focused series on each amendment and the landmark cases that define them, and join the conversation by sharing which amendment you want us to tackle next. If you find this helpful, follow, rate, and share the show so more listeners can join the journey.

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Chapters

• 1:34 Setting Up the Bill of Rights Series
• 1:53 What The Bill of Rights Is
• 3:07 Why Add Rights to the Constitution
• 5:18 State Models and Anti-Federalist Demands
• 7:11 Enumerated Powers Versus Listed Rights
• 9:20 Madison’s Drafting and Early Congress
• 11:11 Federal Limits, Not State Limits
• 13:03 Incorporation and the Fourteenth Amendment
• 16:30 Floors, Ceilings, and State Protections

Transcript

SPEAKER_01: 0:48

Welcome back to Civics in a year. We are starting kind of a little mini-series here on the Bill of Rights. And before we start that, I have Dr. Byenberg back with us, and we're going to kind of set the stage. So, Dr. Beyenberg, our question today is what is the Bill of Rights and why was it added to the Constitution?

unknown: 1:07

Right.

SPEAKER_00: 1:07

So the Bill of Rights is a shorthand that we use to describe the first 10 amendments to the Constitution. I would flag that sometimes people will say, hopefully this isn't stepping on whoever's doing First Amendment stuff, that the First Amendment is first because it's the most important. But in the original, in the original numbering system, it was actually the Third Amendment. And for a while, because the first two weren't weren't ratified. We talked a little bit about that in a previous session about Article V. So it's not a measure of importance or anything like that. It's basically structural stuff was first and then rights. So the Bill of Rights is eight basically sections that are dealing with individual rights: speech, assembly, jury trials, search and seizure. So these are individual rights that an a private that a citizen can basically argue against the federal government. That the federal government is doing something illegal. And then two sections that are basically structural in re-explaining that the U.S. Constitution is a fundamentally federal model with limited federal power. And I'm not going to go into all the detail of each of the amendments because we're going to, as you alluded to, do sort of blow by blow on those. So the broader picture is that the fundamental concern that skeptics of the Constitution had was that it was creating a federal government that was too strong. And particularly they were concerned that it was going to expand its power to be beyond what was in the enumerated powers. And very quickly, there's a fear that the U.S. Constitution is going to fail. And the smarter defenders of the Constitution say, well, what if we basically agreed to some amendments or you put some amendments forward that you'd like to see? You got to sign first, but you've you're all calling for a bill of rights. And the critics are calling for a bill of rights because one, it's in most of their state constitutions, these fundamental guarantees that their state shall not violate freedom of speech or in some cases impose a religion. Some states actually do have established churches, which we'll talk about in the religion First Amendment provisions, but uh, these are fundamental guarantees. And so many of the states basically say we want something like we have in our states, that pretty much all the states have, and the list is pretty similar. We want this to apply to the federal government. We all think a jury trial is important. So we want to make sure that when the federal government is doing a trial, it's by jury. So there's a lot of requests on that. And it's basically we want something that looks like our state constitutional bill of rights that applies to the feds. The most common proposal of an amendment is something akin to the Ninth and or Tenth Amendments, which says, you keep promising us this is a limited federal government. Just put it in writing to say we promise this federal government only has the powers that we've given to it. It's implicit in the logic, in the best reading of the original constitution. All the defenders of the constitution keep saying it. It's one of limited and rated powers. But the anti-federalists say, show us your work effectively. Like you've you are telling us it does this, so this isn't really a concession. Just give us this thing that you already all are promising us. And so the state ratifying conventions, the later ones, often send a sort of a slate of recommended amendments. Originally, the defenders of the Constitution had criticized this because they had said, our federal government is only one of limited and enumerated powers. We didn't authorize a power to violate freedom of speech. And in fact, if you say that the freedom of speech is explicitly protected, then maybe that means that the federal government can do all sorts of other things unless we've told them no. So the concern is, and we'll talk more about this in the Ninth Amendment section, by in by spelling out explicit rights, you are basically undermining the idea of the federal government as one of limited and enumerated powers. You are inverting it and turning the federal government to have much more power like the state governments do. And eventually they solve this by putting the Ninth Amendment in there, which says, no, just because we wrote some rights doesn't mean that we then assume that the federal government has broader powers. So we'll talk more about that. But that's basically the contour of the skeptics of the constitution want a list of individual rights, and they want guarantees that this federal government uh is limited in structures. And the scope of those individual rights is mostly drawn from what's in their state constitutions. So effectively, these are not weird rights, these are not boutique rights, these are things that are pretty common across the states. And so Madison and others, once they get into Congress, Madison had basically said, yep, in the ratify, you know, the Virginia Ratifying Convention and other places, and if you saw, I'll sign this, like we'll do this Bill of Rights. Bizarrely, there are some members of the first Congress that say, like, we didn't say when, we'll get to it a little later. And Madison's like, no, no, this was a big deal. We barely got this thing through. Maybe this should be pretty close to our first order of business. So Madison collects that set of rights, that set of proposed amendments and sort of words miths them and tweaks them. He does try to cheat and sneak one in there that would impose a set of restrictions on the states that he thinks are important. And they very quickly say, like, no, this wasn't part of the deal. The concern is that the federal government is too strong. Now, if we're having the federal government start doing extra guarantees against the states, this sort of undermines what we did. So, Madison, they sort of pull that one and they tweak it in some ways. The Ninth Amendment, particularly, I think, gets less clear in the process. But they send that back out. It gets ratified fairly painlessly because, again, they're not strictly changing anything that they thought the federal government was going to have power to do anyway. But it is worth emphasizing that the Bill of Rights originally is a set of guarantees only against the federal government. Article 1, Section 10 is a list of states, thou shalt not. Article 1, Section 9 is a list of feds, thou shalt not. So the original Bill of Rights is closer to Article 1, Section 9. And in fact, there was a debate about whether they should put most of it in there. That they decide to put it at the end. This is, I'm not going to say uniformly. There are some people that some sort of constitutional cranks that quickly think that this applies to the states, but that is a very, very, very fringe take. And in a very famous 1833 Supreme Court case, which I think John Marshall gets correct, he says, the Bill of Rights do not apply to the states. If you want to, and in that case, it's an eminent domain case. And he says, effectively, you got to take up your eminent domain problems done by your state with your state legislature or your state constitution. And so he said, and this is not a controversial opinion at the time. That being said, basically, during and after the Civil War, the Americans realized that there's a threshold that probably the core things of the Bill of Rights ought to have an independent and secondary enforcement. So, yes, all the states basically have free speech in their constitutions. You can take that up with your state courts, but it's probably a good idea to have the federal courts be able to additionally enforce that. Again, this isn't every right in the whole world that we think is important. This is a pretty small specific list that basically everybody agreed on. And we should apply that additional ceiling or uh floor of rights to the states. And so constitutional historians sort of disagree as to which part of the 14th Amendment is supposed to do this. Generally, most people today think it's supposed to be the privileges and immunities clause that no state shall deprive citizens of the privileges and immunities of the United States. So they take that as to apply to the Bill of Rights. The courts, for weird, weird, complicated reasons, end up applying this sort of indirectly through the due process clause in this very messy process beginning in the 1920s. So there's basically 60 years after the 14th Amendment is ratified, that the original understanding that it's going to apply the Bill of Rights to the states doesn't happen. Very complicated story. I can talk more about that if you want, but you probably don't because it's boring and tedious and confusing and frustrating. And my college-level con law students get annoyed by it. But 14th Amendment, supposed to apply the Bill of Rights to the states. Most people think that now there are a few scholars who don't. They start doing that in the 1920s, but they do it through this really weird, convoluted backwards process of using a different part of the constitution to apply it to the states. But the takeaway is at this point, you effectively have two guarantees of freedom of speech: one that comes from the state constitution, one that comes from the federal constitution. State constitutions can be more expansive in their protection. So if you want to make freedom of speech, so for example, libel is unprotected under the under the freedom of speech.

unknown: 10:14

Okay.

SPEAKER_00: 10:14

Conceptually, not that they would want to, but a state could basically say, we count libel as free speech for our purposes of our state constitution. You're not going to want to do that, but you can add more additional protections. Or you could say, so the Fourth Amendment does not require a warrant for every search. There are cases in which, so for example, searching a car does not necessarily require a warrant if there's probable cause. A state could nonetheless say you have to have a warrant to do that. Again, there are reasons they probably wouldn't, but the idea is now after the application of the Bill of Rights to the states, those are a floor. Every state has to honor that. The state courts and the federal courts will both enforce it, but the states also have independent guarantees of rights that if they're less protective than the Bill of Rights, you just get to use the Bill of Rights guarantee. If they're more protective than the Bill of Rights, you get to use your state's additional protection. So again, one of the nice places where we see federalism being a real help to citizens' liberty.

SPEAKER_01: 11:20

And we you talked about incorporation and you brought up a case and did not say it by name, but we will do a we were we have podcast episodes on everything. We will earn it's gonna be Baltimore, spoilers.

SPEAKER_00: 11:31

Yes.

SPEAKER_01: 11:32

It is we will get into incorporation when we start talking about Supreme Court cases and kind of what that looks like. But why is I need to think of how to phrase this because it feels like you know, one through eight are very like, here's what the government can't do, right? The first amendment starts with Congress shall make no law.

SPEAKER_00: 11:57

But then again, emphasizing again emphasizing a restriction on the Fed. Congress.

SPEAKER_01: 12:04

But then the ninth and 10th Amendment just kind of feel like so. The 10th Amendment was we talk about reserved powers, right? Powers reserved to the state. Ninth Amendment is unenumerated powers. Why are those two it important? Because it feels like we have eights that are here's what the government can't do, here's what citizens are entitled to. And then nine and ten sometimes kind of feel like they don't really have rights, if you will.

SPEAKER_00: 12:36

So, and this is actually one thing where I actually literally began my civil liberties class by asking people how many of you know what the First Amendment is, hands go up, Second Amendment hands go up. And I worked back to the end of the ninth and tenth, and it's almost always far fewer. And as I tell my students, that would have been a disappointment to the architects of the constitution because for them, the civil liberties guarantees were a fallback, but the basic protection of liberty is supposed to be the structural limits on the authority of the federal government. There are reasons, I think there are good reasons and bad reasons that, or I guess I should say more understandable reasons. It is much, much easier for folks who have, I would say, a low level of civic knowledge and awareness. Arguing about powers is technical and in some sense kind of boring. I find it more interesting, but is this a federal or a state power? Is less again outside of me and a few other con law nerds, like people don't get as fired up about that as I know my rights versus like I know your powers and you can't do that, is a much different kind of it's harder to make sort of a bumper sticker version of that. But in some sense, the Ninth and the Tenth Amendments, if you want to do that, what comes first is most important, arguably those in some sense are were more important to the founding generation as a fundamental uh reiteration of the limited power of the federal government. They're more convoluted. I would say, too, for much of the 20th century, many of many, I'm trying to word this as delicately as I can. Federalism became understood as having a particular ideological valence that particularly only conservatives liked it. Okay. This is, I think, odd. I have literally written a book on like the history of progressives being committed to federalism, but among a certain wing of progressive political elites, federalism became coded as like this is the thing icky conservatives believe in. And so I think it became sort of treated as a vestige or of the constitution and not an important part. There are reasons we're seeing it look quite differently now. Gavin Newsom sounds like Barry Goldwater in quoting states' rights in the last couple of months. But I think that that's also part of it, frankly, is that civic education focused on what was easier and a particular sort of wing of civic education thought that the structural stuff was at best sort of old and at worst kind of embarrassing. And I think, I think newer folks have uh younger folks, I think, see that potentially or subsequent generations, I think, have begun to see maybe actually this core feature of the Constitution is more important. But the second take, the second part of that is a slightly hotter take. But the first part, which is look, rights are just easier to understand than than structures, I think does a fair is the bulk of the explanation. The Ninth and Tenth Amendments are not less important, they are arguably more important.

SPEAKER_01: 15:46

And like I alluded to, we're gonna go through all of these amendments. And Dr. Beinberg is actually our expert for the Ninth and Tenth Amendment, which is why I asked that question. Dr. Beinberg, I'm really looking forward to digging into you know, the our next kind of phase here is to dig into the Bill of Rights and then dig into some Supreme Court cases. So I'm really looking forward to that. Thank you again for your expertise.