The Supreme Court has reaffirmed a long-standing interpretation of the American constitutional order: the Bill of Rights originally applied solely to the federal government and did not limit state authority. 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.

This framework changed with the ratification of the 14th Amendment in 1868. Senator Jacob Howard (R-Mich.), who introduced the amendment in 1866 and shepherded 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, proposed the constitutional amendments that became the Bill of Rights. He argued for protections against state governments as well as the federal government, 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."

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 who arrested and prosecuted the editor or publisher of "the Liberator," or anyone distributing the paper within Georgia, under state law.

Thus, Madison sought greater limits on states’ rights to protect fundamental freedoms, a goal only realized after the 14th Amendment expanded constitutional protections to apply against state governments.

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