Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The 1st Amendment (quoted above, emphasis added) prohibits Congress from making anti-free-speech/religion laws, but does not explicitly prohibit the States from doing so.
Most other amendments, however, are worded as follow (using the 5th Amendment as an example, emphasis added):
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
There's no mention of Congress here. Presumably if you're a US citizen or even "a person" anywhere in the United States (not just a federal enclave), including States, territories, and presumably even possessions, you are entitled to these protections.
Of course, Section 1 the 14th Amendment largely renders this issue moot:
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws
although it limits these protections to "persons born or naturalized in the United States and subject to the jurisdiction thereof" not to "person" generically.
Has the Supreme Court ever used the difference in wording between the 1st Amendment and other amendments to decide a case? In particular, cases between the 1798 passage of the 11th Amendment and the 1868 passage of the 14th Amendment?
In particular, did any part of the Supreme Court's https://en.wikipedia.org/wiki/Chisholm_v._Georgia decision rely on the different wording in the amendments? I realize the 11th Amendment effectively invalidated this decision, though the later 14th Amendment largely annulled the 11th Amendment, at least in my opinion.
Currently, does the Supreme Court regard the Bill of Rights (excluding the 1st Amendment) as apply to the States because of their wording, because of the 14th Amendment, or is the issue largely moot now?
I have read:
- What was the rationale to have the US Bill of Rights only apply at the federal level, not at the state-level?
- Can U.S. states establish state religions?
but believe my question is substantially different from either.