The Fourteenth Amendment and Incorporation
The Bill of Rights originally applied only to the national government. Given the concerns about centralized power shared by Federalist and Anti-Federalists alike, this is no surprise. Federalist arguments for strong national power always presupposed strong power in states as well. Tellingly, all the states who proposed any amendments at all suggested the principle of the Tenth Amendment: if the Constitution does not give the national government a certain power, that power is kept by the states and the people. The idea that a distant national government knew better than the people of each individual state what kinds of laws that state should have would have been puzzling to most people during the Founding era and for the first century of the republic.
Not long after the amendment was ratified, its Due Process Clause became the subject of scrutiny. What did it mean for a state to deprive a citizen of life, liberty, or property without due process of law? What was “liberty”? What was “due process”?