Editing Openai/695c860c-fb24-8010-a014-a687d2d61cb3 (section)

=== Assistant: What you’re asserting “pre-1833 it was universally understood that states could not waive federal guarantees” doesn’t m… ===
What you’re asserting (“pre-1833 it was universally understood that states could not waive federal guarantees”) doesn’t match the documentary record we do have from the Founding era. The record shows active disagreement, and a lot of high-signal evidence points the other way: many leading lawyers/politicians treated the Bill of Rights as limits on the federal government, while state constitutions supplied analogous limits on state governments.

===== On June 8, 1789, Madison introduced proposed amendments that expressly would have bound states: =====

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That language (and the House version’s similar “No state shall infringe…” text) is strong evidence that at least Madison thought state-binding protection needed to be written in, not presumed. Teaching American History<ref>{{cite web|title=Teaching American History|url=https://teachingamericanhistory.org/document/the-house-version/|publisher=Teaching American History|access-date=2026-01-09}}</ref>
And accounts of the drafting process note that this attempt to impose key rights on states did not survive the legislative process. Teaching American History<ref>{{cite web|title=Teaching American History|url=https://teachingamericanhistory.org/resource/fate-of-madison/|publisher=Teaching American History|access-date=2026-01-09}}</ref>

If it were “universally understood” that the federal Bill of Rights already bound states, Madison’s “No state shall…” proposal would have been redundant in a way that’s hard to explain.

===== St. George Tucker (among the earliest systematic American constitutional commentators) describes the push for amendments as a response to the federal Constitution’s failure to provide “barrier[s] against” encroachments of the government thereby to be established (i.e., the new national government), and he juxtaposes the federal “Congress shall make no law…” language with state bills of rights. University of Chicago Press<ref>{{cite web|title=University of Chicago Press|url=https://press-pubs.uchicago.edu/founders/documents/amendI_speechs27.html|publisher=University of Chicago Press|access-date=2026-01-09}}</ref> =====

That’s not conclusive by itself, but it’s hard to square with “universally understood binding on states.”

===== Chief Justice Marshall’s opinion in Barron v. Baltimore famously states: =====

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You can argue Marshall was wrong as a matter of original meaning (people do), but the opinion is explicitly grounded in text and structure (and it landed because it fit a widespread interpretive approach already in circulation).

===== Even before the Bill of Rights, the Constitution includes clauses that say “No State shall…” (e.g., Art. I §10). In Calder v. Bull (1798), the Court points directly to that kind of wording (“no state shall pass…”) as the hook for state limitation. Justia Law<ref>{{cite web|title=Justia Law|url=https://supreme.justia.com/cases/federal/us/3/386/|publisher=Justia Law|access-date=2026-01-09}}</ref> =====

That drafting pattern supports the “default” inference: if the text doesn’t say it binds states, it probably doesn’t—unless another provision supplies the link.

==== “Universally understood pre-1833” is too strong. The better-supported historical claim is: ====
* There were competing views, but
* A substantial and influential Founding-era/early-Republic strand read the Bill of Rights as federal-only, and
* The push to make comparable limits effective against states ran through state constitutions first, and later (after 1868) through Fourteenth Amendment theories.

If you want, I can do this very tightly in the format you tend to use in your briefs: (1) proposition, (2) primary sources, (3) inference, (4) rebuttal to the best counter-reading—starting with Madison’s “No state shall…” text and what its rejection does and does not prove.