When the Constitution called the federal government into existence, it set forth its limited, enumerated powers. It was different, however, with respect to state governments. Except for a few express restrictions on their powers enumerated in the Constitution, the states could continue exercising whatever powers they wished against people within the state.
That concept of state sovereignty was confirmed when the 10th Amendment was adopted as part of the Bill of Rights. It states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Thus, state governments constituted a grave threat to the freedom of the citizenry within the state. A state government could, for example, enact a law that forced parents to take their children to church every Sunday, much like state laws today force parents to subject their children to a state-approved education. Or a state could enact a law ordering everyone to turn in his guns to state authorities, much as the state of Virginia is threatening to do today with respect to assault rifles owned by people in Virginia.
If such laws were to be enacted, there would be nothing that people could do to have them declared in violation of the U.S. Constitution because they wouldn’t have been in violation of the Constitution. The First Amendment and the Second Amendment, which protect the right of freedom of religion and the right to keep and bear arms, apply only to the federal government, not to state governments.
Of course, some states themselves had constitutions that protected against such things by essentially incorporating the provisions of the First and Second Amendments and applying them within the state. In that case, people could sue in state court and ask the court to declare the laws unconstitutional under the state constitution. But if the state had no constitutional protection, the person could not secure relief by suing in federal district court.
The Fourteenth Amendment
14th Amendment page1
The Fourteenth Amendment changed that situation. It took the due process clause of the Fifth Amendment and applied it to the states. That prohibited the states from denying any person of life, liberty, and property without due process of law. It also prohibited the states from denying any person the privileges and immunities of citizenship.
Over time, the U.S. Supreme Court held that the Fourteenth Amendment incorporated the protections in the Bill of Rights and applied them to the states. That ensured that when states violated the rights in the Bill of Rights, people could sue in federal district court to have the state law declared in violation of the U.S. Constitution.
Thus, with the enactment of the 14th Amendment, if a state were to enact a a compulsory church-attendance law or a gun-confiscation law, people within the state could sue in federal district court to have them declared in violation of the U.S. Constitution. Since the federal courts would have jurisdiction to hear the case, they would also be empowered under federal rules of procedure to determine whether the laws violated the state constitution as well as the U.S. Constitution.
Thus, contrary to what some people claim, the 14th Amendment did not give the “federal government” a general power to control the states. Instead, it was a negative power assigned to the judicial branch of the federal government — the power to declare state laws in violation of the federal constitution. The 14th Amendment gave people two bites of the apple when it came to liberty — the ability to have a state law declared unconstitutional under both the U.S. Constitution and the state constitution.
