They cannot name a single right it protects. Ask where their rights come from, and they will either plead the fifth or point to the federal Bill of Rights. What they do not know is that colonies first, then states, had declarations of rights before the federal government existed, often more expansive than anything the federal document would guarantee.

Virginia enacted its Declaration of Rights nearly 250 years ago on June 12, 1776, before the Declaration of Independence. George Mason drafted it. Thomas Jefferson lifted whole passages when writing the Declaration. Virginia did not wait for a national government to tell it what rights its citizens had. Other states followed. Massachusetts, Pennsylvania, and the rest wrote constitutions and enumerated protections during the war that were binding laws, enforceable in state courts, sovereign declarations by independent republics.

When the thirteen colonies broke from Britain, they became thirteen sovereign republics. The federal Bill of Rights—ratified fifteen years after Virginia's declaration—was not the source of American liberty; it was a safeguard against one specific threat: federal overreach. The rights it protected already existed in state constitutions. The federal Bill of Rights was a leash on federal power, nothing more.

To understand why incorporation distorts the Constitution, consider who shaped the constitutional debate. History textbooks label Alexander Hamilton and Gouverneur Morris as "Federalists" and their opponents as "Anti-Federalists." However, Hamilton and Morris were centralists. True federalism is bottom-up: sovereignty remains with families, towns, states, and local bodies that delegate limited powers upward.

The sharpest fear of these true federalists was the Supreme Court. If the federal government could determine its own limits, there would be no limits at all. The Court—appointed by the president and confirmed by a Senate, both belonging to the same federal apparatus—would inevitably interpret its own power expansively. As John Allen Smith wrote, and as quoted by Murray Rothbard in Anatomy of the State, the founders assumed "the new government could not be permitted to determine the limits of its own authority, since this would make it, and not the Constitution, supreme." That assumption has been so thoroughly violated that most Americans do not recognize it was ever made.

In 1833, Chief Justice John Marshall ruled in Barron v. Baltimore that the Bill of Rights applied only to the federal government. Barron sued Baltimore, claiming his wharf had been destroyed without compensation in violation of the Fifth Amendment. Marshall dismissed the case. The Bill of Rights was "intended solely as a limitation on the exercise of power by the government of the United States" and "not applicable to the legislation of the states." The federal court had no jurisdiction. Notably, this ruling was an anomaly for Marshall, who spent his career expanding federal power.