The Bill of Rights Against the States

Most Americans have no idea their state has a constitution. They cannot name a single right it protects. Ask where their rights come from, and they will either plead the fifth or point to the federal Bill of Rights. What they do not know is that colonies first, then states, had declarations of rights before the federal government existed, often more expansive than anything the federal document would guarantee.

Virginia enacted its Declaration of Rights nearly 250 years ago on June 12, 1776, before the Declaration of Independence. George Mason drafted it. Thomas Jefferson lifted whole passages when writing the Declaration. Virginia did not wait for a national government to tell it what rights its citizens had. Other states followed. Massachusetts, Pennsylvania, and the rest wrote constitutions and enumerated protections during the war that were binding laws, enforceable in state courts, sovereign declarations by independent republics.

When the thirteen colonies broke from Britain, they became thirteen sovereign republics. The federal Bill of Rights—ratified fifteen years after Virginia’s declaration—was not the source of American liberty; it was a safeguard against one specific threat: federal overreach. The rights it protected already existed in state constitutions. The federal Bill of Rights was a leash on federal power, nothing more.

To understand why incorporation distorts the Constitution, consider who shaped the constitutional debate. History textbooks label Alexander Hamilton and Gouverneur Morris as “Federalists” and their opponents as “Anti-Federalists.” However, Hamilton and Morris were centralists. True federalism is bottom-up: sovereignty remains with families, towns, states, and local bodies that delegate limited powers upward.

The sharpest fear of these true federalists was the Supreme Court. If the federal government could determine its own limits, there would be no limits at all. The Court—appointed by the president and confirmed by a Senate, both belonging to the same federal apparatus—would inevitably interpret its own power expansively. As John Allen Smith wrote, and as quoted by Murray Rothbard in Anatomy of the State, the founders assumed “the new government could not be permitted to determine the limits of its own authority, since this would make it, and not the Constitution, supreme.” That assumption has been so thoroughly violated that most Americans do not recognize it was ever made.

In 1833, Chief Justice John Marshall ruled in Barron v. Baltimore that the Bill of Rights applied only to the federal government. Barron sued Baltimore, claiming his wharf had been destroyed without compensation in violation of the Fifth Amendment. Marshall dismissed the case. The Bill of Rights was “intended solely as a limitation on the exercise of power by the government of the United States” and “not applicable to the legislation of the states.” The federal court had no jurisdiction. Notably, this ruling was an anomaly for Marshall, who spent his career expanding federal power.

Then came the Fourteenth Amendment in 1868, and with it—thanks to 20th century Courts—the doctrine of incorporation. The amendment contains a Privileges or Immunities Clause that the Court has used sporadically, recognizing rights like property ownership, interstate travel, and access to navigable waters, but never as the textual basis for applying the Bill of Rights to states. This was a role it was gutted from performing in the Slaughter-House Cases (1873), leaving its actual scope undefined, which makes sense because the language itself is ambiguous without clear precedent. Instead, the amendment’s due process clause became the Court’s justification for applying the Bill of Rights to states. This is incorporation. But incorporation faces a threshold problem the Court has never addressed: Article III does not grant federal courts jurisdiction to hear these cases.

Article III enumerates precisely what cases federal courts may decide: disputes arising under federal law, cases between citizens of different states, controversies where the United States is a party, disputes between states, etc. Cases between a citizen and their own state do not appear. That omission was intentional. A citizen’s complaint against their own state belonged in state court, under state law.

The Eleventh Amendment—ratified in 1795—confirmed this structure. States retain sovereign immunity from suit. Federal courts cannot haul a state into court without its consent. This was foundational as states are sovereign entities that could not be subjected to federal judicial authority over internal matters.

Incorporation obliterates this. When a citizen sues their own state for violating incorporated Bill of Rights provisions, which Article III grant of jurisdiction applies? None. The Fourteenth Amendment does not mention courts, jurisdiction, amend Article III’s enumerated categories, and does not repeal the Eleventh Amendment.

The Court in the 20th and 21st century treats the 14th Amendment as if it silently rewrote the entire jurisdictional architecture of the federal judiciary. The irony in Barron v. Baltimore is that Marshall ruled the Bill of Rights did not apply to states, but assumed jurisdiction to reach that conclusion. No discussion of Article III categories. No analysis of sovereign immunity. Marshall decided the merits without establishing authority to hear the case, committing the jurisdictional error incorporation would later institutionalize. Even in the post-14th Amendment era, the Court in Hans v. Louisiana (1890) held that citizens cannot sue their own state in federal court because Article III does not grant such jurisdiction and “the suability of a state, without its consent, was a thing unknown to the law.”

So how did the Court workaround this? The Court—in Ex parte Young (1908)—allowed suits against state officers instead of states, a semantic dodge where the relief still runs against state policy. Fitzpatrick v. Bitzer (1976) held Congress could strip state immunity to enforce 14th Amendment rights, treating the amendment as if it silently repealed the Eleventh. Along these we could mention other examples where the logic is likewise thin.

Congress—likely seeing the jurisdictional gap—passed Section 1983 in 1871 by creating statutory authority for federal courts to hear claims against state officers. However, this legislative workaround simply confirms that Article III never contemplated such jurisdiction, necessitating statutory and judicial contortions to achieve what would otherwise be constitutionally impossible. Many proponents of incorporation point to Section Five of the 14th Amendment, but even if Congress has power under Section 5 to enforce rights or remedies, that doesn’t automatically give federal courts jurisdiction. Article III defines what cases federal courts can hear. Section 5 grants legislative power, not judicial jurisdiction. Congress can’t expand Article III categories by statute, that requires constitutional amendment.

The 14th Amendment was sold as protecting rights against state tyranny. But granting federal courts power to override state constitutions created a greater danger: concentrated power in an unaccountable and capricious tribunal. The true federalists understood that concentrated power, even for good purposes, becomes tyrannical. Decentralization made rights sustainable. If one state protected speech more robustly than another, citizens could vote with their feet or use state constitutional protections available. Jurisdictional competition created a race to expand liberty. Incorporation replaced competition with uniformity.

Additionally, the Court has never incorporated every amendment because it cannot. The Fifth requires grand juries; most states don’t use them. The Third prohibits quartering soldiers, relevant only to federal armies, not state militias. The Ninth and Tenth are structurally impossible: how do you incorporate an amendment reserving powers to states and the people by using federal power to override states? The Court incorporates selectively and discarded the Tenth. But the Tenth is the structural foundation of federalism. It reserves all non-delegated powers to the states and the people. In a real sense, incorporation handcuffed it. Criminal law, education, property regulation, gun policy, and every state power now runs through federal courts reviewing incorporated rights. States have “reserved powers” only until a federal judge says otherwise. The Fourteenth has become a magic hat from which judges pull preferred outcomes.

Once the Court claimed authority to apply the Bill of Rights to states, it invented a hierarchy of rights in the 20th century. Some receive “strict scrutiny” requiring compelling government interest. Others get “rational basis” review, where the government nearly always wins. The Court decides which tier applies, determining the outcome before arguments begin. Property and economic liberty? Rational basis. Speech? Strict scrutiny. The Second Amendment shifted from “intermediate scrutiny” to a “text and history” test in 2022. These categories appear nowhere in the Constitution. They’re a judicial management tool masquerading as constitutional interpretation. The First Amendment reads, “Congress shall make no law,” not “unless it passes strict scrutiny.”

Murray Rothbard warned that the state shows striking talent for expanding power beyond any imposed limits. Incorporation is a case study. The federal government was given a limited role. The Bill of Rights enforced that limitation as well as other negative powers within the Constitution. The Supreme Court became the vehicle through which the Bill of Rights was inverted—transformed from a check on federal ambition into a nationwide tool of federal judicial authority.