As Marshall explained, because state governments were already in place in the 1780's, the dominant purpose of the Constitution was to create, yet limit, a new central government. "limitations on power, if expressed in general terms, are naturally, and, we think, necessarily applicable to the government created by the instrument"-that is, the federal government. Though he did not cite it by name, Marshall seems to have had in mind here the sweeping dictum ofThe Constitution is the Supreme Law of the Land, but the Constitution clearly delinates between the powers of the state and federal governments. The Bill of Rights did not apply to the states just because it was part of the Constitution. State laws cannot violate restrictions that were placed only on the federal government.
Hamilton's Federalist No. 83: "The United States, in their united or collective capacity, are the OBJECT to which all general provisions in the Constitution must necessarily be construed to refer."Close inspection of the original Constitution confirms the soundness of the Hamilton-Marshall rule of construction. In Article I, Section 9, for example, we find a purely general prohibition akin to the takings clause in its language and logic: "No Bill of Attainder or ex post facto Law shall be passed." Yet as Marshall forcefully noted, this general prohibition limits only the federal government; hence the framers' inclusion of a separate clause explicitly limiting states, in Article I, Section 10: "No State shall ... pass any Bill of Attainder or ex post facto Law." The absence of any similarly explicit language limiting states in the takings clause cut strongly against Barron's claim. Had the framers of the clause meant to limit states, wrote Marshall, "they would have declared this purpose in plain and intelligible language," like the "No State shall" phrasing of Article I, Section 10.But does not the language of the First Amendment cut exactly the other way, suggesting that where the Bill of Rights aimed at limiting only the federal government, it used an explicit word like "Congress" to signal that intent? Once again, Marshall offered a careful parsing of Article I, Section 9 to drive home his point: "Some of [the clauses in this section] use language applicable only to congress: others are expressed in general terms." If the word "Congress" in the First Amendment could justify applying the takings clause and other general wording in the Bill of Rights to the states, then the same should hold true for Article I, Section 9: the words "the United States" in the Section 9 clause-"No Title of Nobility shall be granted by the United States"-should logically imply that the general wording of the attainder and ex post facto clause of Section 9 applied against the states. Yet as we have seen, the Constitution plainly suggests otherwise. Marshall saw the language of Section 9 as especially relevant because it was "in the nature of a bill of rights," as various Federalists had pointed out during the ratification period to counter Anti-Federalist concerns about the apparent absence of such a bill in the original Constitution.
The legislative history of the Bill of Rights confirms that its framers and ratifiers did so rely. Various state conventions endorsed amendments limiting the new central government, some phrased in general language, others using words explicitly targeted at the central government-"Congress," the "United States," and so on. Yet no one ever suggested that the general language, simply because of its juxtaposition with other clauses worded differently, would limit state governments as well. When Madison distilled these endorsements into his own list of proposed limitations, he suggested that most of these limitations be inserted in Article I, Section 9. Following the rule of construction implicit in that Article, he used general language and explicit references to Congress indiscriminately. The proposed location of these clauses made it clear that, however worded, they applied only against the federal government.
In state convention after state convention in 1787- 88, Anti-Federalists voiced loud concerns about a new, distant, aristocratic, central government that was being called into existence. [40] Many ultimately voted for the Constitution only because Federalists like Madison promised to consider a Bill of Rights soon after ratification. Madison of course kept his word, and knew that if he had not, states' rightists might have called a second constitutional convention to repudiate the basic structure of the Constitution he had labored so hard to build. In short, without the good will of many moderate Anti-Federalists, prospects for the new Constitution looked bleak in 1787-88; and a Bill of Rights was the explicit price of that good will. But the Bill of Rights that Anti-Federalists sought was a Bill to limit the federal government-not just for the sake of individual liberty, but also to serve the cause of states' rights. Madison and his fellow Federalists could hardly have placated their critics, or won over their skeptics, by sneaking massive new restrictions on states into apparently innocuous general language. Nor would Anti-Federalists in Congress or in states have knowingly allowed such a trojan horse though the gates. Madison did openly advocate a small number of additional restrictions on states-clearly labeled as such in a package wrapped in the words "No State shall"-but even that modest proposal was too much for a Senate jealously guarding states' rights. - LINK