Constitutional Rights Against the States Before the Incorporation of the Bill of Rights Against the States

A commenter on the thread about the 1901 case in which the court rejected (on statutory grounds) a prosecution for expelling someone from church based on how he voted writes:

It goes almost without saying that religious freedom was not at issue in this case because the First Amendment would not be incorporated against the states until Gitlow v. New York, 268 U.S. 652 (1925), a quarter of a century later.

Actually, that’s not so (even besides the detail of exactly when the Free Exercise Clause was incorporated against the states). Throughout American history, each state has had its own Constitution and, almost always, its own Bill of Rights; before incorporation, the chief protection against state government action was precisely those Bills of Rights. The 1776 North Carolina Constitution, for instance, provided that “all men have a natural and unalienable right to worship Almighty God according to the dictates of their own conscience” and that “all persons shall be at liberty to exercise their own mode of worship: Provided, that nothing herein contained shall be construed to exempt preachers of treasonable or seditious discourses, from legal trial and punishment.”

As a result, courts before incorporation could and did consider whether state government action violated its state religious freedom provisions, state free speech provisions, and so on. So if the litigants could well have raised a religious freedom argument in this case; if they had, and if the court had concluded that statute did indeed purport to limit church expulsion decisions, the court would have had to consider the constitutional objection.

Whether the challengers of the statute would have succeeded under this counterfactual is a different question. But while nearly all free speech, free press, and religious freedom challenges were generally rejected by early courts, I suspect that this was largely because the restraints were usually well-established and endorsed by tradition, which counted a lot to early courts (and still counts a lot to courts today). A restraint on churches’ ability to break off relations with their members would have been so unusual that I think it might well have been held unconstitutional under the North Carolina Constitution. But of course the court avoid this by concluding that there was indeed no such highly unusual restraint.