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Culture War Roundup for the week of May 11, 2026

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If we are doing constitutional history (as the originalist movement says we should be) this is the key point. The people who wrote the Constitution in 1789 didn't think it needed a Bill of Rights at all because the Constitution didn't grant the federal government the kinds of power that a Bill of Rights was needed to restrict, and the people who ratified the Constitution and Bill of Rights (which they added because they quite properly didn't trust the feds on that point) definitely didn't want the Bill of Rights to be enforceable against the States.

Some of the rights in the Bill of Rights are rights the framers considered fundamental, so as well as putting them in the BoR they also wrote them into their state constitutions. Free speech and criminal juries are the classic examples*. But some of the BoR is about federalism, not fundamental rights. In particular, the Establishment clause was pure federalism (most states had state-level established religions in 1789, although not for long afterwards) and the 2nd amendment was mostly federalism (most states had some kind of RKBA in their state constitutions, but nothing as broad as the right protected against the feds by the 2nd amendment - the framers wanted the states to have the right to regulate their own militias).

The fundamental rights protected by the Bill of Rights should have become enforceable against the States under the Privileges and Immunities clause of the 14th amendment (turned into an inkblot by the Gilded Age SCOTUS in the Slaughterhouse cases) and actually did under civil rights era substantive due process doctrine.

A muscular court would roll it back and return most speech legislation to the states, but it is what it is for now.

That would be dubiously faithful to the Constitutional text given that the 14th amendment exists in a way it didn't at the founding. It would also be lousy policy given the availability of forum-shopped strategic lawsuits against online speech. But the weak version of this claim is correct - a serious originalist Court would need to think about how to mesh the founding-era understanding of the Bill or Rights as a backstop to federalism as much as to fundamental rights with the 14th amendment requirement to protect citizens' rights against overweening state government, and the only justice who has even tried to do that is Thomas in his Establishment clause dissents. The fact that the substantive due process approach to incorporation that the Court had to adopt in order to avoid publicly calling out Slaughterhouse as a Dredd Scott tier mistake is intellectually incoherent doesn't help.

* SCOTUS has never enforced the 7th amendment requirement for civil juries against the states - I'm not sure how this relates to founding-era practice.