2. When States Could Do Whatever They Wanted

Before the Bill of Rights had teeth—your rights stopped at the state line

I’m sitting in my office, surrounded by case law and constitutional amendments, preparing to teach about the Incorporation Doctrine. But my mind keeps wandering to a different question: What would America look like today if states could still ignore the Bill of Rights?

It’s 2025, and states are waging culture wars over abortion, transgender rights, and drag shows. Imagine if these battles weren’t constrained by federal constitutional protections. Imagine if the First Amendment didn’t apply to state governments at all.

The Original Design: A Feature, Not a Bug

When I tell students that the Bill of Rights originally applied only to the federal government, they think I’m describing a constitutional oversight. But the framers were crystal clear about this. The First Amendment says, “Congress shall make no law”—not “government” or “no state.” Congress. Period.

This wasn’t an accident. It was federalism by design. States were supposed to be responsive to local values, local needs, local democratic pressure. If Massachusetts wanted to support Congregationalist churches through tax funding (and it did), that was Massachusetts’s business. If Virginia wanted to restrict speech critical of slavery (and it did), that was between Virginia and its citizens.

The federal government was the distant threat. State governments were accountable to the people.

A Thought Experiment in State Sovereignty

What if incorporation had never happened? Picture Texas without the First Amendment. The state could ban books, shut down opposition newspapers, mandate Christian prayer in schools, and require church attendance for public office—all without violating the federal Constitution.

Now picture California doing the opposite. It could ban all religious symbols from public spaces, require employers to provide benefits that violate religious beliefs, and enforce secularism through state institutions—again, fully constitutional under state law.

The Bill of Rights would restrain only the federal government. Your rights would depend entirely on your state.

States’ Rights in Our Current Moment

Reading about the pre-incorporation era while observing today’s political fights reveals an odd tension. Modern politicians who invoke “states’ rights” aren’t really asking for full state sovereignty. Even the most conservative leaders can’t establish state religions or silence dissent without running afoul of the federal Constitution.

Today, when Florida restricts drag shows or New York regulates speech on campus, federal courts assess those actions under the First Amendment. In 1850, that kind of federal oversight would have been unimaginable.

And here’s the irony: the loudest “states’ rights” advocates often object when other states exercise their autonomy. Texas sues California over its environmental rules and gun regulations, demanding federal intervention. Meanwhile, blue states pass shield laws to protect abortion providers and file amicus briefs opposing Texas laws on abortion and voting. They all invoke state sovereignty—until another state uses it to pursue a different vision of rights. Everyone wants autonomy, but only on their terms.

The Geography of Rights

What lingers most is the geographic fragility of rights in a pre-incorporation world. A free Black person in Massachusetts had profoundly different protections than one in South Carolina. A Catholic in New York faced limits that would not exist in Maryland. A newspaper in Georgia operated under different rules than one in Connecticut.

Today, we still see some variation—on guns, abortion, or marijuana—but incorporation guarantees a federal baseline. Without it, there’s no floor. Your rights would stop at the state line.

Modern Musings

As I prep for this lesson, I wonder what my students will make of this history. They’ve grown up assuming that constitutional rights are uniform across America. The idea that the First Amendment wouldn’t protect you from your own state government seems as foreign to them as medieval trial by ordeal (where people proved their innocence by surviving deliberately painful or dangerous tests).

But maybe that’s exactly why this history matters. It reminds us that the constitutional rights we take for granted are relatively recent inventions. The notion that you have the same free speech rights in Alabama and New York? That’s a product of the 20th century, not the 18th.

It also reframes today’s federalism debates. When politicians argue about federal overreach, they’re really arguing about how much constitutional uniformity America should have. Every federal constitutional requirement that applies to states is a limit on state sovereignty. Every incorporation doctrine case is a choice that national constitutional values matter more than local democratic preferences.

The Price of Uniformity

Sometimes I wonder if we traded a garden for a parking lot.

Before incorporation, America was a constitutional ecosystem. Each state was testing its own hypothesis about human liberty—what mattered most? How far could freedom stretch before it snapped? Pennsylvania’s Quakers built protections around religious conscience that wouldn’t emerge nationally for another century. Massachusetts experimented with educational freedom that Massachusetts would probably find radical today. Vermont abolished slavery in 1777, decades before the federal government could act.

These weren’t just policy differences. States were asking fundamentally different questions about the nature of rights themselves. What if some freedoms conflict with others? What if perfect liberty requires trade-offs that look different in different places, for different people?

Incorporation gave us a federal floor—a shared minimum below which no state could fall. This was revolutionary and necessary. No more Connecticut requiring Congregationalist conformity. No more states denying basic speech rights. No more Catholics facing state-sanctioned discrimination.

But here’s what we lost: the wild experimentation at the boundaries of constitutional protection. Before incorporation, states could be radically different in how they understood and protected rights. Now, while states can still build higher protections above the federal floor—and many do, from California’s privacy protections to Vermont’s environmental rights—we’ve channeled constitutional innovation into a narrower band.

The federal floor became, in practice, a kind of magnetic middle. Yes, states can provide more protection, but the Supreme Court’s interpretations create a gravitational pull toward uniformity. When the Court says what the First Amendment means, that becomes the constitutional conversation for all 50 states, not just the federal level.

Now constitutional innovation happens vertically—through Supreme Court decisions that define the floor for everyone—rather than horizontally through radically diverse state experiments. We’ve gained consistent minimum protections but lost the possibility of truly divergent constitutional visions.

I’m not nostalgic for an era when some Americans had fewer rights than others. The federal floor was morally essential. But I do wonder what constitutional possibilities we’ve channeled into narrower paths. What if states had been allowed to develop entirely different frameworks for balancing liberty and equality? What if we had fifty different constitutional conversations happening simultaneously instead of one national dialogue?

Maybe that’s what haunts me most about this history: we solved the urgent problem of unequal minimums but in doing so, we subtly constrained the space for constitutional imagination. The Constitution now speaks with one voice setting the floor. But we lost something harder to define—the possibility that different states might have discovered entirely different constitutional languages, not just different protection levels.

Teaching This History

When I teach this material, I want students to understand that the Incorporation Doctrine isn’t just constitutional doctrine—it’s a choice about what kind of country we want to be. A choice between state sovereignty and national rights, between local democracy and constitutional uniformity, between federalism and civil liberties.

That choice wasn’t made all at once. It was made case by case, right by right, decade by decade. And it’s still being made every time the Supreme Court hears a case about federal constitutional limits on state power.

Maybe that’s the real rumination here: the Constitution we live under isn’t the Constitution we started with. It’s not even the Constitution the Civil War amendments created. It’s the Constitution that emerged through a century-long conversation about what rights matter enough to apply everywhere, in every state, for every American.

And that conversation is far from over.