City of Boerne v. Flores and the Bill of Rights

I taught Boerne yesterday and noticed something new. Look at this passage in the Court’s opinion:

The design of the Fourteenth Amendment has proved significant also in maintaining the traditional separation of powers between Congress and the Judiciary. The first eight Amendments to the Constitution set forth self-executing prohibitions on governmental action, and this Court has had primary authority to interpret those prohibitions. The Bingham draft, some thought, departed from that tradition by vesting in Congress primary power to interpret and elaborate on the meaning of the new Amendment through legislation. Under it, “Congress, and not the courts, was to judge whether or not any of the privileges or immunities were not secured to citizens in the several States.” While this separation-of-powers aspect did not occasion the widespread resistance which was caused by the proposal’s threat to the federal balance, it nonetheless attracted the attention of various Members. As enacted, the Fourteenth Amendment confers substantive rights against the States which, like the provisions of the Bill of Rights, are self-executing. (citations omitted and emphasis added)

Read closely, this sounds like a statement that the first eight amendments (not the first ten) are the Bill of Rights. The first eight amendments are described as self-executing. Then the Fourteenth and “the Bill of Rights” are called self-executing. Does it not follow that the first eight amendments are the Bill of Rights?

I doubt this is what the Court intended. Probably just a case of imprecise writing. Still, though, there is a rich tradition of calling the first eight amendments the Bill of Rights, as I explain in my book. Maybe this should be seen as the most recent one.

You may also like...

6 Responses

  1. Joe says:

    It can be interpreted that way but don’t think that the opinion intended to say that only the first eight amendments are the “Bill of Rights.” The overall context of the opinion involved congressional power to enforce substantive rights and the first eight specifically (though 2A is something of a mixed character) lists them while the last two are more “declaratory” (to quote the original preamble of Congress’ submission of the proposals to the states) in nature.

    One of the important “declaratory” things the original supporters of a BOR wished to address was the limited nature of the national government and this was sure to be included in the “Bill of Rights.” The paragraph is properly somewhat badly drawn to even imply your take, particularly since for example if a federal entity “disparage others [rights] retained by the people,” the 9A should be self-executing too and in the process substantive rights would be protected.

    I have not read the book so yes this all is more completely addressed there.

  2. Scalia's Ghost in the Machine of Law says:

    That quote comes from Part III-A-1. What do we know about that section?

    1. *Justice Scalia joins all but Part III—A—1 of this opinion.

    So Justice Scalia didn’t join that part and Justice Stevens joined Scalia’s concurrence. So only Kennedy, Rehnquist, Thomas, Ginsburg joined that part of the opinion? And Rehnquist is passed. So of those currently on the court, only Kennedy, Thomas, and Ginsburg joined that part of the opinion? That’s not much of a strong majority. I’d say it’s more dicta than controlling precedent.

  3. Scalia's Ghost in the Machine of Law says:

    So Kennedy wrote City of Boerne, but didn’t think the ninth amendment was “self-executing”? Is that why Lawrence v. Texas didn’t incorporate the ninth amendment, but instead used the “substantive due-process” clause of the fourteenth amendment?

  4. Joe says:

    Part III—A—1 has some legislative history in it, which Scalia was no big fan of. I’m not sure how totally removing that section would change the holding much at all. Five justices still joined that section. The holding doesn’t lose precedent effect because justices involved in it have died. And, there is not much evidence Roberts, Alito & Gorsuch at least disagree with the basics of the opinion. Probably, if you research the point, at least two of them joined opinions citing it.

    Planned Parenthood v. Casey, which Kennedy joined & continues to follow, at one point cited the Ninth Amendment for the principle that rights protected against government infringement includes those not expressly enumerated.

    But, substantive component of due process in general has been the accepted approach to protect “liberty” interests here, going back in some fashion to at least the 19th Century. Some of the framers of the 14A also referenced that, including as a basis for anti-slavery beliefs. On that front, one can find various originalist articles defending substantive due process. Anyway, the one excerpt from a single opinion here is of limited reach in this respect.

  5. Joe says:

    BTW, O’Connor also generally said that she agreed with the majority opinion. Her problem was a disagreement regarding the proper reach of the Free Exercise Clause as understood by the Supreme Court in Oregon v. Smith. Breyer said he would not address the issue of congressional power. Souter’s approach also would have been not to address it.

    There has also been added concern from some liberals about the reach of RFRA in the last few years, so some would be sympathetic along with Ginsburg regarding the majority’s sentiments. To use a term she likes, I think overall the case will have staying power.

  6. Brett Bellmore says:

    I suppose the difference is that 1-8 specify rights that are to be protected, while 9 and 10 are (Generally ignored!) rules of interpretation. Sure, if followed they’d secure rights, but they don’t name any rights themselves, and thus arguably aren’t part of a bill, list OF rights.