Start with the most common constitutional argument in America. A professor gets fired over an op-ed. A homeowner watches a permit board regulate his land into worthlessness. A gun owner gets denied a carry permit. In every case, the aggrieved party reaches for the Bill of Rights. First Amendment. Fifth Amendment. Second Amendment. They’re invoking protections written in 1791 to limit what government can do to them.
Here’s the question almost none of them can answer: which government?
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The framers wrote the Bill of Rights to restrain the federal government, the new national power they’d just created and didn’t fully trust. They didn’t write it to restrain the states. State governments were the framers’ primary instrument of self-rule, and if your state mistreated you, your state constitution and elections were your remedy, not Washington’s. Chief Justice John Marshall confirmed this in Barron v. Baltimore (1833), unanimously. A Baltimore wharf owner sued the city for destroying his business through harbor construction, and Marshall told him the Fifth Amendment’s takings clause simply didn’t reach city government. He was reading the text correctly.
For nearly a century, states could do things the federal government couldn’t: censor speech, search homes without warrants, seize property without paying for it. Then the Fourteenth Amendment arrived in 1868, built specifically to change that.
Its privileges or immunities clause was supposed to be the vehicle. Five years later, the Supreme Court gutted it. The Slaughter-House Cases (1873) read the clause down to nearly nothing, a 5-4 decision that Justice Stephen Field’s dissent called a betrayal of what the Reconstruction Congress intended. The direct route was closed.
The workaround took 50 more years and came from an unlikely source: a communist pamphleteer named Benjamin Gitlow, convicted under New York’s criminal anarchy law. The Supreme Court upheld his conviction 7-2 in Gitlow v. New York (1925), but Justice Edward Sanford’s opinion assumed, almost in passing, that free speech was among the liberties the Fourteenth Amendment’s due process clause protected from state impairment. Gitlow went to prison. Constitutional law took a step it never walked back.
That single sentence became the doctrine of incorporation, the mechanism by which the Warren court spent the 1950s and ’60s applying the Bill of Rights, provision by provision, against state governments. Free press. Free exercise. The exclusionary rule. The right to counsel. Self-incrimination. None of it happened all at once, and it wasn’t finished by 1970. The Second Amendment didn’t get incorporated until McDonald v. City of Chicago (2010), when Otis McDonald, a 76-year-old Chicago homeowner, challenged the city’s handgun ban. Justice Clarence Thomas concurred in the result but argued that the court should have used the privileges or immunities clause all along, that Slaughter-House was wrongly decided and never fixed. He’s still right and still alone. The most recent addition came in Timbs v. Indiana (2019), a unanimous ruling that finally incorporated the excessive fines clause after Indiana tried to keep a man’s Land Rover over a drug charge.
I’ve guest lectured at the University of Southern California Marshall School of Business for years, and I’ve watched sharp business executives assume their First Amendment rights against state licensing boards flow straight from the text. They don’t. They flow from Gitlow and a century of case law that those executives have never read. In my expert witness work on securities and fiduciary matters, I see the same gap from the other direction: people are certain they lack protection the incorporation doctrine has actually given them.
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That’s not a technicality. It’s the whole ballgame. Cite the First Amendment against a state licensing board, and you’re citing text that, as originally written, didn’t apply to him at all. What makes it apply is a hundred years of litigation nobody teaches in high school civics, starting with a communist nobody remembers and ending, for now, with a Land Rover in Indiana.
Not everything made it. Grand jury indictment still isn’t incorporated. Neither is the civil jury trial guarantee. The Second Amendment’s outer limits remain contested in courtrooms today. The project Gitlow started in 1925 is still unfinished business, and there are sitting justices who think the whole detour through due process was unnecessary in the first place. Whichever side of that argument you land on, the lesson holds. The rights you assume you have against your own state government exist because the Supreme Court built them, case by case, out of an amendment Congress designed for exactly that purpose and a court that spent 50 years finding its way back to the point.
Jay Rogers is a financial professional with more than 30 years of experience in private equity, private credit, hedge funds, and wealth management. He has a bachelor’s degree from Northeastern University and has completed postgraduate studies at the University of California, Los Angeles; the University of Pennsylvania; and Harvard University. He writes about issues in finance, constitutional law, national security, human nature, and public policy.
