If you question the average American about the founding fathers intent concerning the protection of freedom of speech and the press and the prohibition of a governmental establishment of religion they most-likely would point to the Bill of Rights under the US Constitution.
They would be only partially correct. The founders who were suspicious of centralization of powers in a “National” government under the then new constitution feared that it would take away the rights of the citizens of the 13 sovereign states by congressional legislation. Thus phrase “Congress shall pass no law” in abridging those rights. Discussions in the states legislatures in adopting the bill of rights approved them with the understanding that these prohibitions on governmental power applied only to the newly formed federal government and not to the several states.
Article Four in the constitution which outlines the relationship between the states and the Federal Government it includes the Full Faith and Credit, Privileges and Immunities, etc. The Obligation of the federal government to guarantee to every State a Republican Form of Government and protection against Invasion and domestic violence upon request. It does not state that the Federal Government enforce the bill of rights between the citizens and their state governments. This is not to say that the states did not have such guarantees already in place already.
Most states had such bill of rights protections in their individual state constitution’s or charters at the time the US Constitution and bill of rights adoption. The united States was unique in that a person born in the US or became naturalized had dual citizenship (State & Federal). The belief of the founders that government should have the least interaction and control over the daily lives of the average citizen and the individual sovereign state should be primary agent of that interaction if any. Many of the former colonies had designated state churches well into the 19th century as well as restrictions of voting and state elected office eligibility.
Until the early part of the last century federal courts correctly interpreted the original intent of the founders that the bill of rights applied only to the federal government. One proof of this fact was the 1833 supreme court (SCOTUS) case: Tiernon v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243, 8 L. Ed. 672. In which the high court stated the fifth amendment only applies to actions of the federal government. After the Civil War the fourteenth amendment was passed to provide citizenship to the newly freed slaves and protect their newly enumerated rights. Unfortunately the intent of the amendment’s due process clause would later be broadened in the twentieth century and used to usurp states’ rights. Critics would later nickname it the “Miracle Amendment”
To prove that the federal courts in the twentieth century have incorrectly interpreted the original intent of the amendment and its due process clause one has to look at the SCOTUS decisions right after the amendment was passed. The Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 21 L. Ed. 394 (1873),was the first major SCOTUS decision and it was a very limited one. The court held that the clause created a distinction between rights of a citizen of a particular state and the right of US citizenship. It concluded that the Fourteenth Amendment stopped states from passing laws abridging the rights of being a U.S. citizen but had no authority over laws abridging the rights of state citizenship. The result of this decision was to exempt much of individual state laws beyond the review of the Court. This interpretation reflected the intent of the amendments framers and can easily be researched by reviewing the record of the congressional debate on the amendment before its passing.
The change in interpretation the due process clause of the 14th Amendment began in the 1920’s and continues down to recent history here are some examples: Gitlow v. New York, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138 (1925), The high court ruled that the First Amendment protection of freedom of speech applied to the states through the Due Process Clause, The right of free exercise of religion was incorporated in the case of Cantwell v. Connecticut 1937 ; the doctrine of the Separation of church and state was incorporated in the case of Everson v. Board of Education in 1947; Some more recent grossly overreaching decisions are Roe v.Wade in which the SCOTUS found that “This right of privacy (abortion), whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it…is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” The “Right of Privacy” which is not found anywhere in the constitution shows that the court now can force made-up rights on the states against state statutes which was passed by the will of its citizens.
The Federal Government has now become in many cases the first and all powerful arbitrator of constitutional rights of the citizen and not the states. If the founders could be time warped to our present day they would be outraged. The Federal Government has become almost as tyrannical to the states as the monarchy they fought so hard to free themselves from. The states are rapidly becoming mere provinces of the central government instead of the sovereign entities they truly are.
I will not overlook some of the good results of the incorporation doctrine in restricting the excesses of the states but when viewed in the light of history and what the founders intended this centralization of power of the Federal Government is dangerous. An example of how the abuse of the interpretation of the fourteenth amendment and its incorporation (and I predict eventually will ) be used against the will of citizens of certain states will be in the area of “Marriage Equality.” If the SCOTUS applies the “Due Process” doctrine and uses this to strike down same-sex marriage bans that was approved by ballot initiatives will be far reaching. There is already a case going through the Utah courts challenging the ban on “Plural Marriage” one wonders where does it stop. In light of this insanity the only remedy might be for states to stop recognizing marriage in total and return it to its religious origin. That might be the only remedy to stop the possible slippery slope of eventually forcing Priests, Ministers & Rabbis from being forced to officiate marriages they deem invalid by their religious belief.
When I was elected to local government my oath was to preserve protect and defend both the US Constitution and the Constitution of the State of New Jersey, How many people even know what is in their state constitutions. What has happened to the 10th Amendment and the right of the states and the right of state citizenship? The Federal Government controls almost every aspect of our lives now. In the past if a citizen felt that his state government usurped their individual rights in some way he could seek remedy his state court and if he lost there vote with his feet and move to another state. The States where once considered laboratories of local government that competed economically and socially in a free market of ideas with other states , what happens when that is stifled by an all-powerful central government where do we vote with are feet then?