I was blissfully ignorant of the controversy regarding whether the first eight amendments to the US Constitution apply to the states and local governments. Imagine the shock, no, the horror of discovering the Bill of Rights only protected your rights from Federal government violation but not breaches by lower governmental entities. Such was recently my misfortune.
The controversy begins in 1833 with Supreme Court Chief Justice John Marshall declaring in
Barron v. Baltimore (1833) 32 US 243 at 250:
These amendments demanded security against the apprehended encroachments of the General Government -- not against those of the local governments. In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in Congress and adopted by the States. These amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them.
and reiterated by Supreme Court Justice William Johnson in
Livingston v. Moore (1833) 32 US 469 at 551-552. He wrote:
As to the amendments of the Constitution of the United States, they must be put out of the case, since it is now settled that those amendments do not extend to the states, and this observation disposes of the next exception, which relies on the seventh article of those amendments.
I think the justices were mistaken and factually in error about "apprehended encroachments." When James Madison proposed the Bill of Rights, he said:
I wish also, in revising the Constitution, we may throw into that section, which interdicts the abuse of certain powers in the State Legislatures, some other provisions of equal, if not greater importance than those already made. The words, "No State shall pass any bill of attainder, ex post facto law," &c. were wise and proper restrictions in the Constitution. I think there is more danger of those powers being abused by the State Governments than by the Government of the United States. The same may be said of other powers which they possess, if not controlled by the general principle, that laws are unconstitutional which infringe the rights of the community. I should therefore wish to extend this interdiction, and add, as I have stated in the 5th resolution, that no State shall violate the equal right of conscience, freedom of the press, or trial by jury in criminal cases; because it is proper that every Government should be disarmed of powers which trench upon those particular rights. I know, in some of the State constitutions, the power of the Government is controlled by such a declaration; but others are not. I cannot see any reason against obtaining even a double security on those points; and nothing can give a more sincere proof of the attachment of those who opposed this Constitution to these great and important rights, than to see them join in obtaining the security I have now proposed; because it must be admitted, on all hands, that the State Governments are as liable to attack these invaluable privileges as the General Government is, and therefore ought to be as cautiously guarded against.
Annals of Congress, 1st Congress, House 1st Session, p. 458
I also think that the reason for the first eight amendments being stated so broadly, with the exception of the first, was to proscribe, in principle and effect, all governments under the US Constitution alienating the natural rights of individuals. That is my reading of the sixth article of the Constitution of the US.
The Bill of Rights' controversy is corrected by the history of section one of the fourteenth amendment to Constitution of the United States. On February 28, 1866, US Representative John Bingham (R-OH) cites the afore mentioned Supreme Court decisions, says:
Why, I ask, should not the "injunctions and prohibitions," addressed by the people in the Constitution to the States and the Legislatures of States, be enforced by the people through the proposed amendment? By the decisions read the people are without remedy.
The Congressional Globe, 39th Congress, House 1st Session, p. 1090
and he further states:
The adoption of the proposed amendment will take from the States no rights that belong to the States. They elect their Legislatures; they enact their laws for the punishment of crimes against life, liberty, or property; but in the event of the adoption of this amendment, if they conspire together to enact laws refusing equal protection to life, liberty, or property, the Congress is thereby vested with power to hold them to answer before the bar of the national courts for the violations of their oaths and of the rights of their fellow-men. Why should it not be so? That is the question. Why should it not be so? Is the bill of rights to stand in our Constitution hereafter, as in the past five years within eleven States, a mere dead letter? It is absolutely essential to the safety of the people that it should be enforced.
ibid.
In 1871, the honorable Mr. Bingham after again mentioning these decisions and reciting the first eight amendments, remarked:
These eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth amendment. The words of that amendment, "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," are an express prohibition upon every State of the Union, which may be enforced under existing laws of Congress, and such other laws for their better enforcement as Congress may make.
The Congressional Globe, 42nd Congress, House 1st Session, p. 84
There's more to the story but I will continue it in another post.