On June 8, 1789, James Madison announced a series of proposed constitutional amendments that would become the Bill of Rights. Madison emphasized the need for these amendments to apply not only to the federal government but also to state governments, stating, "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."

Originally, the Bill of Rights limited only the federal government. For example, the First Amendment 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, states could enact laws restricting these rights without violating the First Amendment, unless their own constitutions provided otherwise.

An example of state-level restrictions occurred in 1831 when the Georgia legislature authorized a $5,000 bounty to be paid by the Governor to anyone arresting and prosecuting the editor or publisher of 'the Liberator,' or anyone circulating the paper within Georgia.

This dynamic changed with the ratification of the 14th Amendment in 1868. Jacob Howard (R-Mich.), who introduced the amendment in the Senate in 1866, explained that the "mass of privileges, immunities, and rights" secured by the Constitution "do not operate in the slightest degree as a restraint or prohibition upon 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."

Thus, the 14th Amendment extended many protections of the Bill of Rights to apply against state governments, addressing the gap Madison had sought to close.

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