The Supreme Court has reaffirmed a long-standing 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." Under the original Constitution, state governments could enact laws restricting these rights without violating the First Amendment, unless their own state constitutions provided otherwise.

This framework changed with the ratification of the 14th Amendment in 1868. Senator Jacob Howard (R-Mich.), who introduced the amendment in 1866 and managed its passage, explained that the Constitution's "mass of privileges, immunities, and rights" did not originally restrain state legislation. He stated, "the great object of the first section of this [14th] amendment is, therefore, to restrict the power of the States and compel them at all times to respect these great fundamental guarantees."

James Madison, on June 8, 1789, announced the proposed constitutional amendments that became the Bill of Rights. He emphasized the need for these protections to apply against state governments as well, saying, "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 lack of initial protections at the state level. In 1831, the Georgia legislature authorized a $5,000 bounty to be paid by the Governor to anyone who arrested and prosecuted to conviction the editor or publisher of "the Liberator," or anyone who circulated the paper in Georgia, demonstrating how states could suppress speech without federal constitutional constraints.

These developments highlight Madison's early recognition of the need for constitutional limits on states' rights to protect fundamental freedoms, a goal ultimately advanced by the 14th Amendment decades later.

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