In 1842, the city of New Orleans prosecuted Father Bernard Permoli, a Catholic priest, for conducting an open casket funeral. A violation of the Free Exercise Clause of the First Amendment? The Supreme Court said no: The protections in the Bill of Rights did not bind state and local governments.

Then in 1868, the Fourteenth Amendment is ratified, and it incorporated the Bill of Rights against the states–or did it? On this episode, the failure of incorporation after Reconstruction.