The courts "say what the law is"

The concept itself is neither in the Bill of Rights nor in the Constitution more generally, at least explicitly, but it is central to understanding the relationship between the Supreme Court and the Bill of Rights.

Ratification after certain necessary conditions are met

(i.e, demand by anti-Federalists for a Bill of Rights prior to ratifying the Constitution)

The Federalist (later known as The Federalist Papers) is a collection of 85 articles and essays written (under the pseudonym Publius) by Alexander Hamilton, James Madison, and John Jay promoting the ratification of the United States Constitution. Seventy-seven were published serially in the Independent Journal and the New York Packet between October 1787 and August 1788. A compilation of these and eight others, called The Federalist: A Collection of Essays, Written in Favour of the New Constitution, as Agreed upon by the Federal Convention, September 17, 1787, was published in two volumes in 1788 by J. and A. McLean. The collection's original title was The Federalist; the title The Federalist Papers did not emerge until the 20th century.

At the founding, property was perhaps the most significant of constitutional liberties.

In addition, the significance of property has declined dramatically (its weight as a constitutional liberty has declined substantially)

Its omission became an important part of the ratification debates. Eventually, several states made the addition of a bill of rights a key condition to their decision to ratify—known as conditional ratification.

In other words, several states insisted that they would not ratify the new Constitution without a bill of rights. A bill of rights thus became a precondition for the new Constitution.

Madison argued that no list of liberties could ever hope to be complete, and this might lead governments to abridge liberties that were not explicitly listed as protected. Moreover, mere “parchment barriers,” he wrote, could not protect liberty.

Anti-Federalists argued that a bill of rights would do no harm, and Jefferson, in particular, argued that such a document might have an important educational purpose. In addition, Jefferson argued that a bill of rights might put “a legal check … in the hands of the judiciary.”

Jefferson’s first argument—that a bill of rights might constitute a public reminder of our commitment to liberty— hints at a conception of the Bill of Rights grounded in civic education

Writing for the Court, Chief Justice John Marshall concluded that the Bill of Rights applied only to the national government. The Bill of Rights reflected the Founders’ fears that the new government might exceed its powers. “The Constitution was ordained and established by the people of the United States for themselves … and not for the government of the individual states.” Implicit in Marshall’s decision is a particular understanding about the relationship among the national government, state governments, and citizens.

Barron is an important case, in part because it made clear that the liberties contained in the Bill of Rights did not protect citizens against actions taken by state governments.

The Court considered four different approaches to incorporation: 1) the fundamental fairness doctrine; 2) total incorporation; 3) total incorporation “plus”; 4) selective incorporation.

Eventually, in the critical case of Palko v. Connecticut (1937), the Court settled on the selective incorporation approach, which meant that some parts of the Bill of Rights would be incorporated—those “implicit in the concept of ordered liberty”—and others would not.