The Bill of Rights and Its Applicability to the States
T HE APPLICABILITY of the Bill of Rights to the several states is an intriguing question with some fascinating constitutional history attached to it. In so far as history is any guide at all, the clear intent of Madison and his supporters in composing and in submitting the Bill of Rights to Congress in April, 1789, and in seeing it approved and ratified by the necessary eleven states as the first eight amendments 1 on December 15, 1791, was that it be applicable to the national (federal) government. Since the states had their own bills of rights, the overriding reason for their authorship and sponsorship of the federal Bill of Rights was to place demonstrably far-reaching restraints on the fledgling central government.2 Indeed, the very first phrase of Article I of the approximately twenty-five assorted rights to be found in the Bill of Rights, which has so aptly been termed "our 462-word pillar of life," is that "Congress shall make no law...." The word "Congress" does not, however, reappear in the remainder of the eight articles of amendment and since much of their language is more general than that of the First, the extent of their reach was bound to be litigated sooner or later.
The question of the applicability of the Bill of Rights to the states was raised theoretically rather quickly by elements of the propertied____________________