Incorporation of Bill of Rights to the States through the Fourteenth Amendment, Study notes of Law

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AMENDMENTS TO THE CONSTITUTION

FIRST THROUGH TENTH AMENDMENTS

AMENDMENTS TO THE CONSTITUTION

BILL OF RIGHTS

First Through Tenth Amendments

On September 12, five days before the Convention adjourned,

Mason and Gerry raised the question of adding a bill of rights to

the Constitution. Mason said: “It would give great quiet to the people;

and with the aid of the State declarations, a bill might be prepared

in a few hours.” But the motion of Gerry and Mason to appoint a

committee for the purpose of drafting a bill of rights was rejected.^1

Again, on September 14, Pinckney and Gerry sought to add a pro-

vision “that the liberty of the Press should be inviolably ob-

served—.” But after Sherman observed that such a declaration was

unnecessary, because “[t]he power of Congress does not extend to

the Press,” this suggestion too was rejected.^2 It cannot be known

accurately why the Convention opposed these suggestions. Perhaps

the lateness of the Convention, perhaps the desire not to present

more opportunity for controversy when the document was for-

warded to the states, perhaps the belief, asserted by the defenders

of the Constitution when the absence of a bill of rights became criti-

cal, that no bill was needed because Congress was delegated none

of the powers which such a declaration would deny, perhaps all these

contributed to the rejection.^3

In any event, the opponents of ratification soon made the ab-

sence of a bill of rights a major argument,^4 and some friends of the

document, such as Jefferson,^5 strongly urged amendment to in-

(^1) 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 587–88 (rev. ed.

1937). (^2) Id. at 617–618. (^3) The argument most used by proponents of the Constitution was that inas-

much as Congress was delegated no power to do those things which a bill of rights would proscribe no bill of rights was necessary and that it might be dangerous be- cause it would contain exceptions to powers not granted and might therefore afford a basis for claiming more than was granted. THE FEDERALIST No. 84 at 555–67 (Alex- ander Hamilton) (Modern Library ed. 1937). (^4) Substantial excerpts from the debate in the country and in the ratifying con-

ventions are set out in 1 THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 435–620 (B. Schwartz ed., 1971); 2 id. at 627–980. The earlier portions of volume 1 trace the origins of the various guarantees back to the Magna Carta. (^5) In a letter to Madison, Jefferson indicated what he did not like about the pro- posed Constitution. “First the omission of a bill of rights providing clearly and with- out the aid of sophisms for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury in all matters of the fact triable by the laws of the land and not by the law of Nations.... Let me add that a bill of rights

Senate rejected two and reduced the remainder to twelve, which

were accepted by the House and sent on to the states 10 where ten

were ratified and the other two did not receive the requisite num-

ber of concurring states.^11

Bill of Rights and the States. —One of the amendments that

the Senate refused to accept—declared by Madison to be “the most

valuable of the whole list” 12 —read: “The equal rights of conscience,

the freedom of speech or of the press, and the right of trial by jury

in criminal cases shall not be infringed by any State.” 13 In spite of

this rejection, the contention that the Bill of Rights—or at least the

first eight amendments—was applicable to the states was repeat-

edly pressed upon the Supreme Court. By a long series of deci-

sions, beginning with the opinion of Chief Justice Marshall in Bar-

ron v. Baltimore ,^14 the argument was consistently rejected.

Nevertheless, the enduring vitality of natural law concepts encour-

aged renewed appeals for judicial protection through application of

the Bill of Rights.^15

The Fourteenth Amendment and Incorporation. —

Following the ratification of the Fourteenth Amendment, litigants

disadvantaged by state laws and policies first resorted unsuccess-

fully to the Privileges or Immunities Clause of § 1 for judicial pro-

tection.^16 Then, claimants seized upon the Due Process Clause of

the Fourteenth Amendment as guaranteeing certain fundamental

(^9) 1 ANNALS OF CONGRESS 424–50 (June 8, 1789). The proposals as introduced are

at pp. 433–36. The Members of the House were indisposed to moving on the propos- als. (^10) Debate in the House began on July 21, 1789, and final passage was had on

August 24, 1789. 1 ANNALS OF CONGRESS 660–779. The Senate considered the propos- als from September 2 to September 9, but no journal was kept. The final version compromised between the House and Senate was adopted September 24 and 25. See 2 THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 983–1167 (B. Schwartz ed., 1971). (^11) The two not ratified dealt with the ratio of population to representatives and

with compensation of Members of Congress. H. AMES, THE PROPOSED AMENDMENTS TO THE CONSTITUTION 184, 185 (1896). The latter proposal was deemed ratified in 1992 as the 27th Amendment. (^12) 1 ANNALS OF CONGRESS 755 (August 17, 1789). (^13) Id. (^14) 32 U.S. (7 Pet.) 243 (1833). See also Livingston’s Lessee v. Moore, 32 U.S. (

Pet.) 469 (1833); Permoli v. Municipality No. 1, 44 U.S. (3 How.) 589, 609 (1845); Fox v. Ohio, 46 U.S. (5 How.) 410 (1847); Smith v. Maryland, 59 U.S. (18 How.) 71 (1855); Withers v. Buckley, 61 U.S. (20 How.) 84 (1858); Pervear v. Massachusetts, 72 U.S. (5 Wall.) 475 (1867); Twitchell v. Commonwealth, 74 U.S. (7 Wall.) 321 (1869). (^15) Thus, Justice Miller for the Court in Loan Ass’n v. Topeka, 87 U.S. (20 Wall.)

655, 662, 663 (1875): “It must be conceded that there are... rights in every free government beyond the control of the State... There are limitations on [govern- mental] power which grow out of the essential nature of all free governments. Im- plied reservations of individual rights, without which the social compact could not exist, and which are respected by all governments entitled to the name.” (^16) Slaughter-House Cases , 83 U.S. (16 Wall.) 36 (1873).

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and essential safeguards, without pressing the point of the applica-

bility of the Bill of Rights.^17 It was not until 1887 that a litigant

contended that, although the Bill of Rights had not limited the states,

nonetheless, to the extent that they secured and recognized the fun-

damental rights of man, they were privileges and immunities of citi-

zens of the United States and were now protected against state abridg-

ment by the Fourteenth Amendment.^18 This case the Court decided

on other grounds, but in a series of subsequent cases it confronted

the argument and rejected it,^19 though over the dissent of the elder

Justice Harlan, who argued that the Fourteenth Amendment in ef-

fect incorporated the Bill of Rights and made them effective re-

straints on the states.^20 Until 1947, this dissent made no headway,^21

(^17) Walker v. Sauvinet, 92 U.S. 90 (1876); United States v. Cruikshank, 92 U.S. 542 (1876); Hurtado v. California, 110 U.S. 516 (1884); Presser v. Illinois, 116 U.S. 252 (1886). In Hurtado , in which the Court held that indictment by information rather than by grand jury did not offend due process, the elder Justice Harlan entered a long dissent arguing that due process preserved the fundamental rules of proce- dural justice as they had existed in the past, but he made no reference to the possi- bility that the Fourteenth Amendment due process clause embodied the grand jury indictment guarantee of the Fifth Amendment. (^18) Spies v. Illinois, 123 U.S. 131 (1887). (^19) In re Kemmler, 136 U.S. 436 (1890); McElvaine v. Brush, 142 U.S. 155 (1891); O’Neil v. Vermont, 144 U.S. 323 (1892). (^20) In O’Neil v. Vermont, 144 U.S. 323, 370 (1892), Justice Harlan, with Justice Brewer concurring, argued “that since the adoption of the Fourteenth Amendment, no one of the fundamental rights of life, liberty or property, recognized and guaran- teed by the Constitution of the United States, can be denied or abridged by a State in respect to any person within its jurisdiction. These rights are, principally, enumer- ated in the earlier Amendments of the Constitution.” Justice Field took the same position. Id. at 337. Thus, he said: “While therefore, the ten Amendments, as limita- tions on power, and so far as they accomplish their purpose and find their fruition in such limitations, are applicable only to the Federal government and not to the States, yet, so far as they declare or recognize the rights of persons, they are rights belonging to them as citizens of the United States under the Constitution; and the Fourteenth Amendment, as to all such rights, places a limit upon state power by ordaining that no State shall make or enforce any law which shall abridge them.” Id. at 363. Justice Harlan reasserted this view in Maxwell v. Dow, 176 U.S. 581, 605 (1900) (dissenting opinion), and in Twining v. New Jersey, 211 U.S. 78, 114 (1908) (dissenting opinion). Justice Field was no longer on the Court and Justice Brewer did not in either case join Justice Harlan as he had done in O’Neil. (^21) Cf. Palko v. Connecticut, 302 U.S. 319, 323 (1937), in which Justice Cardozo for the Court, including Justice Black, said: “We have said that in appellant’s view the Fourteenth Amendment is to be taken as embodying the prohibitions of the Fifth. His thesis is even broader. Whatever would be a violation of the original bill of rights (Amendments I to VIII) if done by the Federal Government is now equally unlawful by force of the Fourteenth Amendment if done by a state. There is no such general rule.” See Frankfurter, Memorandum on ‘Incorporation,’ of the Bill of Rights Into the Due Process Clause of the Fourteenth Amendment , 78 HARV. L. REV. 746 (1965). According to Justice Douglas’ calculations, ten Justices had believed that the Four- teenth Amendment incorporated the Bill of Rights, but a majority of the Court at any one particular time had never been of that view. Gideon v. Wainwright, 372 U.S. 335, 345–47 (1963) (concurring opinion). See also Malloy v. Hogan, 378 U.S. 1, 4 n.2 (1964). It must be said, however, that many of these Justices were not consis-

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had its beginnings in an 1897 case in which the Court, without men-

tioning the Just Compensation Clause of the Fifth Amendment, held

that the Fourteenth Amendment’s Due Process Clause forbade the

taking of private property without just compensation.^27 Then, in Twin-

ing v. New Jersey^28 the Court observed that “it is possible that some

of the personal rights safeguarded by the first eight Amendments

against National action may also be safeguarded against state ac-

tion, because a denial of them would be a denial of due process of

law.... If this is so, it is not because those rights are enumer-

ated in the first eight Amendments, but because they are of such

nature that they are included in the conception of due process of

law.” And, in Gitlow v. New York ,^29 the Court in dictum said: “For

present purposes we may and do assume that freedom of speech

and of the press—which are protected by the First Amendment from

abridgment by Congress—are among the fundamental personal rights

and ‘liberties’ protected by the due process clause of the Four-

teenth Amendment from impairment by the States.” After quoting

the language set out above from Twining v. New Jersey , the Court

in 1932 said that “a consideration of the nature of the right and a

review of the expressions of this and other courts, makes it clear

that the right to the aid of counsel is of this fundamental charac-

ter.” 30 The doctrine of this period was best formulated by Justice

Cardozo, who observed that the Due Process Clause of the Four-

teenth Amendment might proscribe a certain state procedure, not

because the proscription was spelled out in one of the first eight

amendments, but because the procedure “offends some principle of

justice so rooted in the traditions and conscience of our people as

porates’ the First. This is not a quibble. The phrase ‘made applicable’ is a neutral one. The concept of ‘absorption’ is a progressive one, i.e., over the course of time something gets absorbed into something else. The sense of the word ‘incorporate’ implies simultaneity. One writes a document incorporating another by reference at the time of the writing. The Court has used the first two forms of language, but never the third.” Frankfurter, Memorandum on ‘Incorporation’ of the Bill of Rights Into the Due Process Clause of the Fourteenth Amendment , 78 HARV. L. REV. 746, 747– (1965). It remains true that no opinion of the Court has used “incorporation” to de- scribe what it is doing, cf. Washington v. Texas, 388 U.S. 14, 18 (1967); Benton v. Maryland, 395 U.S. 784, 794 (1969), though it has regularly been used by dissent- ers. E.g. , Pointer v. Texas, 380 U.S. 400, 408 (1965) (Justice Harlan); Williams v. Florida, 399 U.S. 78, 130 (1970) (Justice Harlan); Williams v. Florida, 399 U.S. at 143 (Justice Stewart). (^27) Chicago, B. & Q. R.R. v. City of Chicago, 166 U.S. 226 (1897). (^28) 211 U.S. 78, 99 (1908). (^29) 268 U.S. 652, 666 (1925). (^30) Powell v. Alabama, 287 U.S. 45, 68 (1932).

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to be ranked as fundamental,” 31 because certain proscriptions were

“implicit in the concept of ordered ‘liberty.’ ” 32

As late as 1958, Justice Harlan asserted in an opinion of the

Court that a certain state practice fell afoul of the Fourteenth Amend-

ment because “[i]t is beyond debate that freedom to engage in asso-

ciation for the advancement of beliefs and ideas is an inseparable

aspect of the ‘liberty’ assured by the Due Process Clause of the Four-

teenth Amendment, which embraces freedom of speech... .” 33

But this process of “absorption” into due process, of rights that

happened also to be specifically named in the Bill of Rights, came

to be supplanted by a doctrine that had for a time co-existed with

it: the doctrine of “selective incorporation.” This doctrine holds that

the Due Process Clause incorporates the text of certain of the pro-

visions of the Bill of Rights. Thus, in Malloy v. Hogan ,^34 Justice

Brennan wrote: “We have held that the guarantees of the First Amend-

ment, the prohibition of unreasonable searches and seizures of the

Fourth Amendment, and the right to counsel guaranteed by the Sixth

Amendment, are all to be enforced against the States under the Four-

teenth Amendment according to the same standards that protect

those personal rights against federal encroachment.” And Justice

(^31) Snyder v. Massachusetts, 291 U.S. 97, 105 (1934). (^32) Palko v. Connecticut, 302 U.S. 319, 325 (1937). Justice Frankfurter was a strong

advocate of this approach to the Fourteenth Amendment’s due process clause. E.g. , Rochin v. California, 342 U.S. 165 (1952); Adamson v. California, 332 U.S. 46, 59 (1947) (concurring opinion). Justice Harlan followed him in this regard. E.g. , Benton v. Maryland, 395 U.S. 784, 801 (1969) (dissenting opinion); Williams v. Florida, 399 U.S. 78, 117 (1970) (concurring in part and dissenting in part). For early applica- tions of the principles to void state practices, see Moore v. Dempsey, 261 U.S. 86 (1923); Meyer v. Nebraska, 262 U.S. 390 (1923); Tumey v. Ohio, 273 U.S. 510 (1927); Powell v. Alabama, 287 U.S. 45 (1932); Mooney v. Holohan, 294 U.S. 103 (1935); Brown v. Mississippi, 297 U.S. 278 (1936); Rochin v. California, supra. (^33) NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958). (^34) 378 U.S. 1, 10 (1964) (citations omitted). In Washington v. Texas, 388 U.S.

14, 18 (1967), Chief Justice Warren for the Court said that the Court has “increas- ingly looked to the specific guarantees of the [Bill of Rights] to determine whether a state criminal trial was conducted with due process of law.” And, in Benton v. Mary- land, 395 U.S. 784, 794 (1969), Justice Marshall for the Court wrote: “[W]e today find that the double jeopardy prohibition of the Fifth Amendment represents a fun- damental ideal in our constitutional heritage, and that it should apply to the States through the Fourteenth Amendment.” In this process, the Court has substantially increased the burden carried by those who would defend a departure from the re- quirement of the Bill of Rights of showing that a procedure is fundamentally fair. That is, previously the Court had asked whether a civilized system of criminal jus- tice could be imagined that did not accord the particular procedural safeguard. E.g. , Palko v. Connecticut, 302 U.S. 319, 325 (1937). The present approach is to ascertain whether a particular guarantee is fundamental in the light of the system existent in the United States; the use of this approach can make a substantial difference. Duncan v. Louisiana, 391 U.S. 145, 149 n.14 (1968). See also Williams v. Florida, 399 U.S. 78 (1970); Apodaca v. Oregon, 406 U.S. 404 (1972); McDonald v. Chicago, 561 U.S. ___, No. 08–1521, slip op. (2010) (plurality opinion).

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Aside from the theoretical and philosophical considerations raised

by the question whether the Bill of Rights is incorporated into the

Fourteenth Amendment or whether due process subsumes certain

fundamental rights that are named in the Bill of Rights, the prin-

cipal relevant controversy is whether, once a guarantee or a right

set out in the Bill of Rights is held to be a limitation on the states,

the same standards that restrict the Federal Government restrict

the states. The majority of the Court has consistently held that the

standards are identical, whether the Federal Government or a state

is involved,^38 and “has rejected the notion that the Fourteenth Amend-

ment applies to the State only a ‘watered-down, subjective version

of the individual guarantees of the Bill of Rights.’ ” 39 Those who

have argued for the application of a dual-standard test of due pro-

cess for the Federal Government and the states, most notably Jus-

Public trial— In re Oliver, 333 U.S. 257 (1948). Jury trial—Duncan v. Louisiana, 391 U.S. 145 (1968). Impartial Jury—Irvin v. Dowd, 366 U.S. 717 (1961); Turner v. Louisiana, 379 U.S. 466 (1965). Notice of charges— In re Oliver, 333 U.S. 257 (1948). Confrontation—Pointer v. Texas, 380 U.S. 400 (1965); Douglas v. Alabama, 380 U.S. 415 (1965). Compulsory process—Washington v. Texas, 388 U.S. 14 (1967). Counsel—Powell v. Alabama, 287 U.S. 45 (1932); Gideon v. Wainwright, 372 U.S. 335 (1963). Eighth Amendment— Cruel and unusual punishment—Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947); Robinson v. California, 370 U.S. 660 (1962). Provisions not applied are : Third Amendment— Quartering troops in homes—No cases. Fifth Amendment— Grand Jury indictment—Hurtado v. California, 110 U.S. 516 (1884). Seventh Amendment— Jury trial in civil cases in which value of controversy exceeds $20— Cf. Adamson v. California, 332 U.S. 46, 64–65 (1947) (Justice Frankfurter concurring). See Minne- apolis & St. L. R.R. v. Bombolis, 241 U.S. 211 (1916). Eighth Amendment— Bail— But see Schilb v. Kuebel, 404 U.S. 357, 365 (1971). Excessive Fines— But see Tate v. Short, 401 U.S. 395 (1971) (using equal protec- tion to prevent automatic jailing of indigents when others can pay a fine and avoid jail). (^38) Malloy v. Hogan, 378 U.S. 1, 10–11 (1964); Ker v. California, 374 U.S. 23 (1963);

Griffin v. California, 380 U.S. 609 (1965); Baldwin v. New York, 399 U.S. 66 (1970); Williams v. Florida, 399 U.S. 78 (1970); Ballew v. Georgia, 435 U.S. 223 (1978); First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 780 n.16 (1978) (specifically the First Amendment speech and press clauses); Crist v. Bretz, 437 U.S. 28 (1978); Burch v. Louisiana, 441 U S. 130 (1979). (^39) Williams v. Florida, 399 U.S. 78, 106–107 (1970) (Justice Black concurring in part and dissenting in part), quoting Malloy v. Hogan, 378 U.S. 1, 10–11 (1964).

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tice Harlan,^40 but including Justice Stewart,^41 Justice Fortas,^42 Jus-

tice Powell,^43 and Justice Rehnquist,^44 have not only rejected

incorporation, but have also argued that, if the same standards are

to apply, the standards previously developed for the Federal Gov-

ernment would have to be diluted in order to give the states more

leeway in the operation of their criminal justice systems.^45 The lat-

ter result seems to have been reached for application of the jury

trial guarantee of the Sixth Amendment.^46

(^40) Justice Harlan first took this position in Roth v. United States, 354 U.S. 476, 496 (1957) (concurring in part and dissenting in part). See also Ker v. California, 374 U.S. 23, 45–46 (1963) (concurring). His various opinions are collected in Wil- liams v. Florida, 399 U.S. 78, 129–33 (1970) (concurring in part and dissenting in part). (^41) Williams v. Florida, 399 U.S. 78, 143–45 (1970) (concurring in part and dis- senting in part); Duncan v. Louisiana, 391 U.S. 145, 173–83 (1968) (Justices Harlan and Stewart dissenting). But see Apodaca v. Oregon, 406 U.S. 404, 414 (1972) (dis- senting). See also Crist v. Bretz, 437 U.S. 28 (1978) (Justice Stewart writing opinion of the Court). (^42) Bloom v. Illinois, 391 U.S. 194, 211 (1968) (concurring). (^43) Johnson v. Louisiana, 406 U.S. 356, 366 (1972) (concurring); Crist v. Bretz, 437 U.S. 28, 52–53 (1978) (dissenting, joined by Chief Justice Burger and Justice Rehnquist). But see First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 780 n. (1978) (rejecting theory in First Amendment context in opinion for the Court, joined by Chief Justice Burger). (^44) Buckley v. Valeo, 424 U.S. 1, 290 (1976) (concurring in part and dissenting in part); First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 822 (1978) (dissenting). See also Crist v. Bretz, 437 U.S. 28, 52–53 (1978) (joining Justice Powell’s dissent). Justice Jackson also apparently held this view. Beauharnais v. Illinois, 343 U.S. 250, 288 (1952) (dissenting). (^45) E.g. , Williams v. Florida, 399 U.S. 78, 129–38 (1970) (Justice Harlan concur- ring in part and dissenting in part); Bloom v. Illinois, 391 U.S. 194, 213–215 (1968) (Justice Fortas concurring). But see Williams v. Florida, 399 U.S. at 106–08 (Justice Black concurring in part and dissenting in part). (^46) Williams v. Florida, 399 U.S. 78 (1970); Apodaca v. Oregon, 406 U.S. 404 (1972). But cf. Ballew v. Georgia, 435 U.S. 223 (1978).

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