In its 1833 decision in Barron v. Baltimore, the U.S. Supreme Court reaffirmed something about the American constitutional order that had been widely understood since the founding. Namely, the Supreme Court reaffirmed that the Bill of Rights applied only to the federal government and placed no limits on the authority of the states.
The First Amendment was actually quite explicit about it. “Congress shall make no law,” it reads, “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, in other words, a state government was free to make laws that abridged the rights of speech, press, religion, and assembly without raising any First Amendment problems. Unless its own state constitution said otherwise, a state was free to impose such restrictive laws within its own state borders.
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All of that changed, however, with the 1868 ratification of the 14th Amendment. “No State shall make or enforce any law,” the 14th Amendment says, “which shall abridge the privileges or immunities of citizens of the United States; nor shall any State 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.”
That language was understood to apply the Bill of Rights and other unenumerated rights against the states. The 14th Amendment was needed, explained Sen. Jacob Howard (R-Mich.), who introduced the amendment in the Senate in 1866 and successfully managed its passage, because 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.” According to Howard, “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.”
The Supreme Court finally got around to affirming that 1868-era understanding of the First Amendment’s limitations on state action in the 1925 case of Gitlow v. New York. Since Gitlow, it has been settled SCOTUS case law that the First Amendment binds both the federal government and the states.
Had one prominent founding father gotten his way, it never would have taken so long.
On June 8, 1789, James Madison announced the batch of proposed constitutional amendments that would eventually become enshrined as the Bill of Rights. One of Madison’s would-be amendments, however, did not make the final cut, as it failed in the Senate after passing the House of Representatives. Here is what that lost Madisonian amendment to the Constitution would have said: “No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.”
Put differently, Madison wanted several parts of the Bill of Rights to apply equally against the federal government and the states. Why? “Because it must be admitted, on all hands,” Madison said, “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.”
Madison was right to worry about state attacks on freedom of the press. In 1831, the Georgia legislature authorized a $5,000 bounty “to be paid by the Governor to any person or persons arresting and bringing to trial, under the laws of the State, and prosecuting to conviction, the editor or publisher of ‘the Liberator,’ or any other person who shall utter, publish, or circulate said paper in Georgia.”
The Liberator was the pioneering antislavery newspaper published by the Boston abolitionist William Lloyd Garrison. The state of Georgia literally made it a crime for Garrison and his allies to speak out against slavery. And Georgia was not the only one to do so. Other slaveholding states imposed similar bans on antislavery speech in the decades leading up to the Civil War.
It should probably go without saying, but every one of those laws was a blatant attack on bedrock free speech principles. Yet none of that proslavery state censorship violated the First Amendment at the time because the First Amendment did not (yet) bind the states.
Madison’s unsuccessful constitutional amendment would have fixed that problem. He wisely recognized that the great liberties spelled out in the Bill of Rights were at risk from all levels of government. In a way, Madison’s preferred solution might even be said to have prefigured some of what was eventually accomplished via the 14th Amendment.
Unfortunately, the “father of the Constitution” failed to sway his colleagues on this crucial point. It would fall to the framers and ratifiers of the 14th Amendment to finish the job that Madison began.
