# Bill of Rights Question **URL:** \ **Category:** Factual Questions\ **Created:** [May 16, 2002, 3:55pm UTC](https://boards.straightdope.com/t/bill-of-rights-question/109401 "2002-05-16T15:55:24Z")\ **Posts on this page:** 12\ **Page:** 1
**Author:** ![zorch](https://avatars.discourse-cdn.com/v4/letter/z/50afbb/32.png) [@zorch](https://boards.straightdope.com/u/zorch)\ **Post date:** [May 16, 2002, 3:55pm UTC](https://boards.straightdope.com/t/bill-of-rights-question/109401/1 "2002-05-16T15:55:24Z")
The Bill of Rights states," **Congress** shall make no law abridging free speech…" My question is, does that mean that State Legislatures are free to make such a law? Is the President allowed to abridge free speech by Presidential order? I tried to do a search of the SD board to see if this had been answered, but it was taking too long, and I didn’t want to tie up the bandwidth any longer. ---
**Author:** ![Joe\_Cool](https://avatars.discourse-cdn.com/v4/letter/j/ecb155/32.png) [@Joe\_Cool](https://boards.straightdope.com/u/Joe_Cool)\ **Post date:** [May 16, 2002, 4:25pm UTC](https://boards.straightdope.com/t/bill-of-rights-question/109401/2 "2002-05-16T16:25:38Z")
No. Section 1 of the 14th Amendment says: > [@](#): > > All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. _ **No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.** _ ---
**Author:** ![friedo](https://avatars.discourse-cdn.com/v4/letter/f/8edcca/32.png) [@friedo](https://boards.straightdope.com/u/friedo)\ **Post date:** [May 16, 2002, 4:32pm UTC](https://boards.straightdope.com/t/bill-of-rights-question/109401/3 "2002-05-16T16:32:52Z")
**Joe\_Cool** answered the first question. As to the second, the President only has the authority to issue orders to people who are part of the various executive Departments (Defense, Energy, HHS, Transportation, Agriculture, etc) and in some cases certain independant executive agencies. The President has no power to order private citizens to do anything. ---
**Author:** ![toadspittle](https://avatars.discourse-cdn.com/v4/letter/t/c0e974/32.png) [@toadspittle](https://boards.straightdope.com/u/toadspittle)\ **Post date:** [May 16, 2002, 4:33pm UTC](https://boards.straightdope.com/t/bill-of-rights-question/109401/4 "2002-05-16T16:33:27Z")
What about the Pres., though? ---
**Author:** ![toadspittle](https://avatars.discourse-cdn.com/v4/letter/t/c0e974/32.png) [@toadspittle](https://boards.straightdope.com/u/toadspittle)\ **Post date:** [May 16, 2002, 4:35pm UTC](https://boards.straightdope.com/t/bill-of-rights-question/109401/5 "2002-05-16T16:35:20Z")
Thanks, friedo. Slow server syndrome. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [May 16, 2002, 6:15pm UTC](https://boards.straightdope.com/t/bill-of-rights-question/109401/6 "2002-05-16T18:15:30Z")
The general stance is that if Congress has no right to legislate X, then the President (and his Administration) and the Courts have no right to require it as regards their own jurisdictions within the powers of the government. Because the first eight amendments (and several adopted since) define rights retained by American citizens, the Fourteenth protects them against encroachment by the states. (The courts are loath to find rights guaranteed by the Ninth Amendment but not spelled out, but have done so in a few cases, and these rights too are protected by the Fourteenth.) It’s worth noting that only the First Amendment specifies the Federal government or a branch thereof – the remainder of the bill of rights simply outline rights. While constitutional jurisprudence from the start has read the Bill of Rights (without the Fourteenth) as applicable only to the Federal government, it is arguable that the actual wording of Amendments II-IX could be taken to mean the states as well. Arguing this before the Rehnquist Court, however, seems to me to fit closely the dictionary definition of “futility.” ---
**Author:** ![Munch](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/munch/32/5281_2.png) [@Munch](https://boards.straightdope.com/u/Munch)\ **Post date:** [May 16, 2002, 6:39pm UTC](https://boards.straightdope.com/t/bill-of-rights-question/109401/7 "2002-05-16T18:39:22Z")
Polycarp, it should be noted that not all of the first 8 amendments have been incorporated by the 14th A. - I believe the 2nd A. is the exception (if not, it’s the 3rd). I’m sure someone will make the distinction. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [May 16, 2002, 6:55pm UTC](https://boards.straightdope.com/t/bill-of-rights-question/109401/8 "2002-05-16T18:55:51Z")
Well, yeah, there have been no court decisions regarding the Second and Seventh, and several provisions incorporated in the others. (E.g., much of what’s required of federal courts in the Sixth is not verbatim mandated of state courts, so long as they adopt procedures that give the same protection, the same degree of justice.) Also, nobody, federal or state, has attempted to compel the quartering of soldiers against a citizen’s will in contravention of the Third. But the _principle_ is that the Fourteenth mandates as against the states the protection of the rights that the Bill of Rights mandates as against the federal government. While I’ve learned that nobody can predict what the Rehnquist Court will do with a constitutional principle, and no particular case can be foreordained, in a case that forced the court to render a decision on one of the missing ones as applied to the states, I’d say that they would either incorporate via the 14th or pull a “reasonable equivalent” ruling a la the 6th. ---
**Author:** ![Rmat](https://avatars.discourse-cdn.com/v4/letter/r/85e7bf/32.png) [@Rmat](https://boards.straightdope.com/u/Rmat)\ **Post date:** [May 16, 2002, 10:06pm UTC](https://boards.straightdope.com/t/bill-of-rights-question/109401/9 "2002-05-16T22:06:44Z")
Also among the rights NOT incorporated by the 14th amendment–and thus, NOT directly enforceable against the states as a matter of federal constitutional law–are \*the right to grand jury indictment (a clause of the fifth amendment), \*the right to trial by jury in civil cases (7th amendment), and \*the right against excessive fines and (arguably) bail (8th amendment). As noted, however, many (if not all) states provide substantially identical assurances as a matter of state constitutional law. (I believe, however, that there are some states that do not provide for indictment at all; in those states, felony charges are brought, instead, exclusively by information, preliminary hearing, and holding orders binding defendants over for trial.) ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [May 18, 2002, 4:08pm UTC](https://boards.straightdope.com/t/bill-of-rights-question/109401/10 "2002-05-18T16:08:20Z")
> [@](#): > > \*Originally posted by Polycarp \* > \*\*Also, nobody, federal or state, has attempted to compel the quartering of soldiers against a citizen’s will in contravention of the Third. \*\* The 2nd Circuit Court of Appeals has held that the Third Amendment can apply to actions by the states as well as to the federal government: [Engblom v. Carey, 677 F. 2d 957 (2d Cir. 1982)](http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/engblom.html). Don’t know how the case ultimately came out: having decided that there was a live issue of fact to be determined, the Circuit Court remanded to the District Court, but the subsequent decisions are not on-line, as far as I can tell: \*Engblom v. Carey, \*on remand, 572 F. Supp. 44 (S.D.N.Y.), aff’d. per curiam, 724 F.2d 28 (2d Cir. 1983). ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [May 18, 2002, 7:09pm UTC](https://boards.straightdope.com/t/bill-of-rights-question/109401/11 "2002-05-18T19:09:35Z")
Thanks, **Piper**! I’ll never trust my copy of Corwin again! 🙂 ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [May 19, 2002, 6:16am UTC](https://boards.straightdope.com/t/bill-of-rights-question/109401/12 "2002-05-19T06:16:56Z")
You’re welcome, **Polycarp.** If it’s any consolation, [FindLaw](http://caselaw.lp.findlaw.com/data/constitution/amendment03/) does refer to it as “the curious case of Engblom v. Carey,” so it doesn’t seem to be a mainstream case.