The Ninth Amendment states that listing certain rights in the Constitution does not mean that people do not have other rights that have not been established. Thus, although the power of judicial review was introduced in 1803, more than a century would pass before the Supreme Court even had many ways to protect the rights of the individual. 130 years after its ratification, the most remarkable thing about the Bill of Rights has been its almost complete non-implementation by the courts. In the early 20th century, racial segregation was legal and permeated every aspect of American society. Gender discrimination has been firmly institutionalized and workers have been arrested for trade union activities. Legal immigrants were deported because of their political views, police used physical coercion to extract confessions from criminal suspects, and members of minority religions were persecuted. As recently as 1920, the U.S. Supreme Court had never struck down a law or government action on First Amendment grounds. The Bill of Rights established bottom-up principles that guaranteed the most basic rights in very general terms. But from the beginning, real cases emerged that raised difficult questions about how and even if the Bill of Rights would be implemented. Before paper rights could become rights in rem, someone had to interpret what the wording of the Bill of Rights meant in certain situations.
Who would be the final arbiter on how the Constitution should be applied? One of the many points of contention between federalists, who advocated a strong national government, and anti-federalists who wanted power to remain in the hands of state and local governments, was the absence of a bill of rights in the Constitution that would set specific limits on government power. Federalists argued that the Constitution did not need a Bill of Rights because the people and the states retained all the powers that were not given to the federal government. Antifederalists considered that a bill of rights was necessary to protect individual freedom. Originally, the Bill of Rights applied only to the federal government. (One of the amendments rejected by the U.S. Senate would also have applied these rights to state laws.) However, the Fourteenth Amendment (1868) prohibited states from restricting the rights of a citizen without due process, and in the 20th century, the U.S. Supreme Court gradually applied most of the guarantees of the Bill of Rights to state governments. The protection of rights was not the government`s only objective. It was always expected to protect the community from foreign and domestic threats, ensure economic growth and conduct foreign affairs. However, it was not the government`s job to tell people how to live their lives, what religion to believe in, or what to write in a pamphlet or newspaper. In this sense, the idea of individual rights is the oldest and most traditional American value. Gradually, the Bill of Rights went from a „parchment barrier” to a wall of protection that increasingly protected the inalienable rights of every individual within the reach of government.
The most common constitutional violations remained unchallenged because the people whose rights were most often violated were precisely those members of society who knew least about their rights and could least afford a lawyer.
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