The Supreme Court has reaffirmed a foundational principle of American constitutional law: the Bill of Rights originally applied only to the federal government and did not limit state authority. The First Amendment, for example, states, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." This language did not restrict state governments, which were free to enact laws that curtailed these rights unless their own constitutions provided otherwise.

This changed with the ratification of the 14th Amendment in 1868. Senator Jacob Howard (R-Mich.), who introduced the amendment in 1866, explained that many constitutional rights "do not operate in the slightest degree as a restraint or prohibition upon State legislation." He said the amendment's primary goal was "to restrict the power of the States and compel them at all times to respect these great fundamental guarantees."

James Madison, who on June 8, 1789, announced the proposed constitutional amendments that became the Bill of Rights, argued for protections against state infringement as well as federal. Madison stated, "Because it must be admitted, on all hands, that the state governments are as liable to attack these invaluable privileges as the general [national] government is, and therefore ought to be as cautiously guarded against."

Historical examples illustrate the need for such protections. In 1831, the Georgia legislature authorized a $5,000 bounty to be paid by the Governor to anyone who arrested and prosecuted the editor or publisher of "the Liberator," or anyone circulating the paper within Georgia, under state law.

Thus, Madison sought greater limits on states' rights to ensure that fundamental freedoms enshrined in the Bill of Rights applied equally against state governments, a goal only realized after the 14th Amendment's adoption.

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