The Bill of Rights originated as a constraint only on the federal government. As every law student learns, therefore, in the 1833 case of Barron v. Baltimore, the Supreme Court dismissed a Fifth Amendment takings claim against a state. This Article shows, however, that early state courts regularly invoked and applied the provisions of the Bill of Rights in reviewing state law and state executive action. Barron meant only that the federal courts would not apply the provisions of the Bill of Rights to the states. State courts could decide independently to apply those provisions against their own state governments, and the jurisdictional limits of the 1789 Judiciary Act shielded those state court decisions from Supreme Court review. Largely forgotten today, state court applications of the Federal Bill of Rights against state government represented a vibrant body of constitutional law in the early Republic. Restoring this history challenges the conventional account that states were mostly unconstrained until ratification of the Reconstruction-era amendments, and that only in the mid-twentieth century did courts begin to protect adequately the rights of individuals. Instead, early constitutional law was multifaceted, sophisticated, and innovative, with a diverse set of jurists invoking and applying an array of constitutional rules to keep government at all levels in check.
The history of the Federal Bill of Rights in the early state courts points also to some deficiencies of modern constitutional law. Compared to the antebellum era, constitutional law today is radically consolidated. Among other things, state courts cannot extend federal constitutional protections beyond the limits the Supreme Court itself sets; this leaves individuals with fewer places to turn to protect their rights. Consolidation is also inconsistent with federalism. The historical practice of allowing state courts leeway to interpret independently the Federal Constitution reflected the importance of state courts in our constitutional design and the benefits that accrue to the system as a whole when individual state courts are able to make different choices. In addition, consolidation has weakened state constitutional law, as developed and applied by the state courts. Incorporation of federal constitutional protections, as defined by the Supreme Court, has displaced state constitutional law as the principal source of individual rights. Rather than decide independently what provisions of their own state constitution mean, state courts have tended to hew to the Supreme Court’s understandings of analogous provisions in the Federal Constitution. State courts have lost their voices under the Federal Constitution, and they have fallen out of practice of speaking under their state constitutions. Finally, consolidation helps account for the enormous tension that is characteristic of our current regime when federal constitutional rights are, ultimately, dependent upon the decisions of the Supreme Court.