Marbury v. Madison, the landmark case that Will cites in the article, doesn't directly give the federal courts the authority to declare state laws unconstitutional as to the Bill of Rights, it just asserted the prerogative of the federal courts to adjudicate the constitutionality of laws against the Constitution. Since the language of the Bill of Rights is explicitly directed at federal laws (i.e., because of the language "Congress shall make no law…"), states had far more leeway in the laws they could pass. At the time of Marbury, a state law would likely be declared unconstitutional if it attempted to usurp the enumerated powers given to the federal government. The guarantee that the Bill of Rights applied to the states came with the Fourteenth Amendment, which was adopted in 1868. Even then, there was heated debate about which of the Bill of Rights could be enforced against the states. I don't think it was a given that the First Amendment was incorporated into the Fourteenth against the states. Later cases, though, have held that the substantive portions of the First Amendment do apply to the states.
Make sure you're signed up so we can inbox you the latest.
Login to choose your subscriptions!
Indy Week • 201 W. Main St., Suite 101, Durham, NC 27701 • phone 919-286-1972 • fax 919-286-4274
RSS Feeds | Powered by Foundation