The Bill of Rights originally applied only to the federal government, allowing states to enact laws that could restrict freedoms such as speech, press, religion, and assembly without violating the First Amendment. This was widely understood since the founding of the United States. On June 8, 1789, James Madison announced the proposed constitutional amendments that would become the Bill of Rights, emphasizing that state governments were just as likely as the federal government to infringe on these "invaluable privileges" and thus should be equally constrained.

For example, 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, illustrating how states could restrict speech without federal constitutional limits.

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 Constitution's "mass of privileges, immunities, and rights" did not originally restrain state legislation. The 14th Amendment's primary purpose was "to restrict the power of the States and compel them at all times to respect these great fundamental guarantees."

Thus, Madison's early concerns about state governments infringing on rights were later addressed by constitutional amendments that extended protections against state actions.

Notable Quotes

  • 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."
  • The 14th Amendment provides that no state shall "abridge the privileges or immunities of citizens of the United States; nor 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."
  • Jacob Howard said the amendment aimed "to restrict the power of the States and compel them at all times to respect these great fundamental guarantees."
  • Madison remarked, "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."

Sources

This article is based on reporting from Reason, authored by Damon Root, published on August 6, 2026. For more details, see Reason's article.