The Bill of Rights, originally designed to restrict only the federal government, did not limit state governments from enacting laws that could infringe on freedoms such as speech, religion, and assembly. 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." However, under the original Constitution, states were free to impose restrictive laws unless their own constitutions forbade it.

On June 8, 1789, James Madison introduced proposed constitutional amendments that became the Bill of Rights. Madison explained his motivation: "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 this vulnerability. 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.

This dynamic shifted with the 1868 ratification of the 14th Amendment. Senator Jacob Howard (R-Mich.), who introduced the amendment in 1866 and managed its passage, noted 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 emphasized that 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."

Thus, Madison's early warnings about state governments' potential to infringe on fundamental rights were later addressed through constitutional change, extending protections against state actions.

Sources