How our constitutional form of government was changed so radically without democratic input — and what Jefferson's warnings about judicial consolidation mean for us today.
Consider the exact language of the 1st Amendment: 'Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press...' The prohibitive language was only directed at the federal Congress — not the states.
In his last written opinion as a member of the U.S. Supreme Court, Chief Justice John Marshall held in Barron v. Baltimore (1833) that the Bill of Rights only applied to the federal government, not to state governments. This conclusion was universally accepted for decades.
After the Civil War, Congress and the states passed the 14th Amendment to force the southern states to grant the newly-freed slaves every right enjoyed by white citizens. Professor Charles Fairman made a compelling case that those who voted to adopt the 14th Amendment only intended to ensure that the recently freed slave had the same rights as everyone else — they did not intend to nationalize all rights.
However, beginning in the early twentieth century, the Supreme Court began to 'incorporate' various provisions of the Bill of Rights against the states through the 14th Amendment's due process clause — a process known as 'selective incorporation.'
In Gitlow v. New York (1925), the court simply assumed that freedom of speech was among the 'fundamental personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the States.' That wasn't much of an explanation to justify the expansion of federal power at the expense of the states.
Jefferson predicted that the usurpation of power from the states would take place gradually and noiselessly. The selective incorporation doctrine is one of the best illustrations of the fulfillment of his prediction. On a case-by-case basis, the Supreme Court started judging how 'fundamental' a particular right was and started applying it against the states.
The correct way to change the constitutional relationship between the federal government and the states is through the amendment process — as was done with women's suffrage through the 19th Amendment. Judicial reinterpretation of existing amendments to achieve the same result bypasses the democratic process entirely.
The germ of dissolution of our federal government is in the constitution of the federal judiciary... gaining a little today and a little tomorrow, advancing its noiseless step like a thief.