Excluded From The Bill of Rights
Originally, the Bill of Rights restrictions applied only to the federal government and not to the state governments. Parts of the amendments originally proposed by Madison that would have limited state governments ("No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.") were not approved by Congress, and therefore the Bill of Rights did not apply to the powers of state governments.
States had established state churches up until the 1820s, and Southern states, beginning in the 1830s, could ban abolitionist literature. In the 1833 case Barron v. Baltimore, the Supreme Court specifically ruled that the Bill of Rights provided "security against the apprehended encroachments of the general government—not against those of local governments." In the Gitlow v. New York, 268 U.S. 652, (1925) case, the Supreme Court ruled that the Fourteenth Amendment, which had been adopted in 1868, could make certain applications of the Bill of Rights applicable to the states. However, the Gitlow case stated (p. 666): "For present purposes we may and do presume that freedom of speech and of the press — which are protected by the First Amendment from abridgment by Congress — are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States." However at p. 668, the Court held: "It does not protect publications prompting the overthrow of government by force", which Gitlow and associates advocated in their publications. The Supreme Court has cited Gitlow v. New York as precedent for a series of decisions that made most, but not all, of the provisions of the Bill of Rights restrictions applicable to the states under the doctrine of selective incorporation.
When first adopted, the Bill of Rights applied to white men and excluded most Americans. Free blacks were excluded from The Bill of Rights because they were not citizens. Also excluded were all women, American Indians, immigrants, and white men who did not own land.
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“It is my belief that there are “absolutes” in our Bill of Rights, and that they were put there on purpose by men who knew what words meant, and meant their prohibitions to be “absolute.””
—Hugo Black (b. 1922)
“It may be the first in what I trust will be a rapidly growing and influential genre—the novel designed on purpose to be excluded from the Booker short-list.”
—Angela Carter (1940–1992)
“Reasoning from the common course of nature, and without supposing any new interposition of the Supreme Cause, which ought always to be excluded from philosophy; what is incorruptible must also be ingenerable. The soul, therefore, if immortal, existed before our birth: And if the former existence noways concerned us, neither will the latter.”
—David Hume (1711–1776)
“Reasoning from the common course of nature, and without supposing any new interposition of the Supreme Cause, which ought always to be excluded from philosophy; what is incorruptible must also be ingenerable. The soul, therefore, if immortal, existed before our birth: And if the former existence noways concerned us, neither will the latter.”
—David Hume (1711–1776)
“It’s true I’ve got no shirts to wear;
It’s true my butcher’s bill is due;
It’s true my prospects all look blue—
But don’t let that unsettle you:”
—Sir William Schwenck Gilbert (1836–1911)
“Is a Bill of Rights a security for [religious liberty]? If there were but one sect in America, a Bill of Rights would be a small protection for liberty.... Freedom derives from a multiplicity of sects, which pervade America, and which is the best and only security for religious liberty in any society. For where there is such a variety of sects, there cannot be a majority of any one sect to oppress and persecute the rest.”
—James Madison (1751–1836)