Nationalization of the Bill of Rights

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As it emerged from the Philadelphia convention in the fall of 1787, the proposed new Constitution of the United States did not contain a bill of rights. During the struggle over the Constitution’s ratification, however, an almost universally voiced criticism of the new framework of government was that it lacked a bill of rights and that the national government being proposed would exercise its enhanced powers in a manner that would encroach upon the rights of individuals. The Constitution’s supporters consequently promised that if it were ratified without change, the addition of a bill of rights would be proposed by the first Congress to meet after ratification. Drafted by James Madison, a bill of rights was proposed by the Congress in 1789 and was ratified by a sufficient number of the states in December 1791.

The addition of the Bill of Rights to the Constitution was therefore the political price that the supporters of the Constitution were constrained to pay for the ratification of the Constitution. And it was also clear that the almost universal demand for the addition of the Bill of Rights to the Constitution resulted from the fear that the new national government being created by the Constitution would exercise its powers in a manner inimical to the rights and liberties of the people. The founding generation thus understood that the rights guaranteed in the Bill of Rights were restrictions of the powers of the national government, and were not directed at restricting the powers of the state and local governments. This understanding of the applicability of the rights in the Bill of Rights was confirmed by the U.S. Supreme Court in Barron v. Baltimore in 1833. Speaking for a unanimous Court, Chief Justice John Marshall held that the rights in the Bill of Rights were not applicable to exercises of power by the state and local governments but were applicable only as restraints on the powers of the national government.

Prior to the Civil War, therefore, the Bill of Rights played an important albeit restricted role in American constitutional law, since the rights contained in the Bill of Rights could only be legitimately invoked to challenge exercises of power by the national government, but not those of state and local governments. In the wake of the Civil War, however, the Fourteenth Amendment was added to the Constitution in 1868, and unlike the Bill of Rights, the Fourteenth Amendment was directed at imposing restrictions on the powers of the state and local governments. This was particularly true of the amendment’s Due Process Clause, which provided that no state shall “deprive any person of life, liberty, or property, without due process of law.” During the course of interpreting the meaning of the words “liberty” and “property,” and the phrase “due process of law,” in the decades that followed the ratification of the Fourteenth Amendment, the Supreme Court would fundamentally alter the pre–Civil War understanding that the Bill of Rights was restrictive of the powers of the national government alone, and would incrementally through the Due Process Clause of the Fourteenth Amendment make most of the rights in the Bill of Rights applicable as restrictions of the powers of the state and local governments as well.

This nationalization of the Bill of Rights—that is, the application of most of the rights in the Bill of Rights as restrictions of the powers of state and local governments via the Due Process Clause of the Fourteenth Amendment—was nonetheless initially steadfastly resisted by the Supreme Court in its interpretation of the Due Process Clause. In a series of decisions between 1870 and 1900, for example, the Court held that the Due Process Clause did not require the states to try civil cases involving more than $20 by juries, to indict criminal defendants by grand juries, or to afford criminal defendants jury trials, although the provisions of the Fifth, Sixth, and Seventh Amendments of the Bill of Rights imposed these requirements on the national government. Such decisions provoked vigorous dissenting opinions by Justice John Marshall Harlan, who argued that the purpose of the Fourteenth Amendment had been to make all of the rights in the Bill of Rights applicable as restrictions of the powers of the state and local governments. (This contention would later be called the “total incorporation” theory or position.)

In 1897, however, a breakthrough occurred regarding the nationalization of the Bill of Rights in the decisions of the Supreme Court. In Chicago, Burlington & Quincy Railway Co. v. Chicago (1897), the Court held that the Due Process Clause of the Fourteenth Amendment required the state and local governments to provide just compensation when private property was taken by those governments for public purposes. Since the Just Compensation Clause in the Fifth Amendment of the Bill of Rights required just compensation for private property taken for public uses, the Court had for the first time held that a right in the Bill of Rights was also a limitation imposed on the state and local governments by the Due Process Clause of the Fourteenth Amendment.

This ruling, however, posed a theoretical problem for the Supreme Court, since it had held in Barron v. Baltimore in 1833 that the rights in the Bill of Rights were inapplicable to the state and local governments, yet it had now ruled that state and local governments must give just compensation for private property taken for public uses, a right also guaranteed in the Fifth Amendment of the Bill of Rights. A theoretical reconciliation of the apparently contradictory rulings in the Barron and Chicago, Burlington & Quincy Railway cases thus appeared necessary, and the Court attempted such a reconciliation in its decision in Twining v. New Jersey in 1908.

In the Twining case, the Court rejected (over another vigorous dissent by Justice Harlan) the proposition that the Due Process Clause of the Fourteenth Amendment guaranteed a right against compulsory self-incrimination in state criminal proceedings, although the Self-incrimination Clause of the Fifth Amendment of the Bill of Rights guaranteed such a right in criminal proceedings conducted by the national government. In discussing the meaning of the Due Process Clause of the Fourteenth Amendment, however, the Court conceded that the clause guaranteed fundamental rights as limitations of state and local governmental powers, and that indeed the Due Process Clause might guarantee as restrictions on state and local governments certain rights like some of those found in the Bill of Rights. If this were so, the Court added, “it is not because those rights are enumerated in the first eight Amendments [the Bill of Rights], but because they are of such a nature that they are included in the conception of due process of law.”

While not free of ambiguity, the received understanding of this statement was that the Court was now saying that the rights in the Bill of Rights were not applicable to the state and local governments via the Due Process Clause of the Fourteenth Amendment (thus reaffirming the Barron ruling), but that the Due Process Clause might guarantee against state and local governments some rights similar to some of those in the Bill of Rights (as had been held in the Chicago, Burlington & Quincy Railway case). If this were so, however, the rights thus guaranteed by the Due Process Clause had as their source the Due Process Clause alone, and not the Bill of Rights, and they were consequently only similar to their counterparts in the Bill of Rights and not identical to them. It was under this Twining theory that the nationalization of the Bill of Rights proceeded until the 1940s with regard to First Amendment rights and until the 1960s regarding rights in the field of criminal procedure.

While the Court’s discussion of the relationship between the Due Process Clause of the Fourteenth Amendment and the Bill of Rights in the Twining case appeared to point toward future rulings holding rights at least similar to some of those in the Bill of Rights to be protected by the Due Process Clause and thus restrictive of the state and local governments, in fact no such rulings by the Court occurred for over fifteen years following the Twining decision. In 1925, however, with its decision in Gitlow v. New York, the Court again took a major step down the road of nationalizing the Bill of Rights. Benjamin Gitlow had argued that the Due Process Clause protected freedom of speech against restrictions by state and local governments, and that his conviction in New York courts for advocating criminal anarchy thus violated the Constitution. While the Supreme Court affirmed Gitlow’s conviction, it did state during the course of its opinion in the Gitlow case that “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 Fourteenth Amendment from impairment by the states.”

This “assumption” that the freedoms of speech and press were protected by the Due Process Clause of the Fourteenth Amendment against invasion by state and local governments was subsequently confirmed by the Court in Near v. Minnesota 1931. There followed a series of decisions between 1937 and 1947 starting with DeJonge v. Oregon (1937) in which the Court also held that the freedom of assembly and the free exercise of religion as well as the prohibition of an establishment of religion, all rights protected by the First Amendment of the Bill of Rights, were also protected by the Due Process Clause. The nationalization of the First Amendment freedoms was thus complete by 1947.

In a development that paralleled its nationalization of First Amendment freedoms, the Supreme Court began to hold that the Due Process Clause additionally protected certain rights of the criminally accused like some of those in the Bill of Rights. In Powell v. Alabama (1932), the Court held that the states were required to appoint attorneys for indigent criminal defendants in capital cases as well as in noncapital cases in which the lack of counsel for the defendant would result in an unfair trial. In the Powell case, the Court thus held that the Due Process Clause guaranteed a right like that protected by the Assistance of Counsel Clause of the Sixth Amendment of the Bill of Rights. In 1936, the Court further barred the use of coerced confessions in state criminal proceedings, recognizing that the Due Process Clause protected against state abridgment a right similar to that protected by the Self-incrimination Clause of the Fifth Amendment. And in 1948 and 1949, the Court also ruled that the Due Process Clause prohibited secret criminal proceedings and unreasonable searches and seizures, rights like those protected by the Public Trial Clause of the Sixth Amendment and the prohibition found within the Fourth Amendment.

While nationalizing certain rights of the criminally accused, the Court continued to adhere to the Twining theory that the rights protected by the Due Process Clause had their source in the Due Process Clause alone, and were therefore only similar to their counterparts in the Bill of Rights. The right to counsel recognized by the Court in the Powell case in 1932 as applicable in state criminal proceedings was thus only similar to the right to counsel applicable in federal criminal proceedings via the Assistance of Counsel Clause of the Sixth Amendment. And while barring the use of coerced confessions in state criminal cases under the Due Process Clause in 1936, the Court rejected the proposition that the Self-incrimination Clause of the Fifth Amendment was applicable to the states. While continuing to adhere to the Twining theory, the Court also in 1937 rejected the proposition, first advanced by Justice John Marshall Harlan, that the Due Process Clause applied all of the rights in the Bill of Rights as restrictions of state and local governmental power.

In Palko v. Connecticut (1937), counsel for Frank Palko argued not only that the Double Jeopardy Clause of the Fifth Amendment was applicable in state criminal proceedings via the Due Process Clause but also that all of the rights in the Bill of Rights were applicable to the states. In an opinion by Justice Benjamin N. Cardozo, the Supreme Court rejected both contentions. Cardozo conceded nonetheless that certain rights, such as freedom of speech and of the press, that were guaranteed in the Bill of Rights had been “absorbed” into the Due Process Clause of the Fourteenth Amendment. Those rights that had been so absorbed, he said, were “implicit in the scheme of ordered liberty” or “of the very essence of a scheme of ordered liberty,” or embodied a “principle of justice so rooted in the history and traditions of our people as to be ranked as fundamental.” Additionally, Cardozo noted, the Due Process Clause also protected those rights essential to a fair trial or hearing, such as the right to appointed counsel for indigent criminal defendants, and barred the imposition in the criminal process of any hardship “so shocking that our polity will not endure it.” But, Cardozo continued, the rights protected by the Due Process Clause did not include the Fifth Amendment’s requirement of a grand jury indictment or the rights against self-incrimination and double jeopardy, nor the Sixth and Seventh Amendments’ requirements of jury trials in criminal cases as well as civil cases involving more than $20.

The Supreme Court’s opinion in the Palko case reflected the virtually unanimous consensus of the justices in 1937 regarding the theory guiding the nationalization process, since only Justice Pierce Butler dissented without opinion in the case. When the Court next addressed the underlying theory guiding nationalization, in Adamson v. California (1947), however, this virtual unanimity was shattered, and the Court was revealed to be deeply divided over the nationalization process. In the Adamson case, the Court was once again confronted with an argument that the Self-incrimination Clause of the Fifth Amendment should apply to the states via the Due Process Clause of the Fourteenth Amendment. And a majority of five members of the Court rejected this contention, relying on the previous decision in Twining v. New Jersey (1908). The Due Process Clause, the majority said, required only that the states afford criminal defendants a fair trial, and the right against compulsory self-incrimination was not essential to a fair trial.

In a dissenting opinion joined by Justices William O. Douglas, Wiley Rutledge, and Frank Murphy, Justice Hugo Black argued that the intention of the framers of the Fourteenth Amendment had been to make all of the rights in the Bill of Rights applicable to the states, including the Self-incrimination Clause of the Fifth Amendment. In addition to his support for total incorporation of the Bill of Rights into the Fourteenth Amendment, Justice Black rejected the Twining theory of nationalization, which was passionately defended by Justice Felix Frankfurter in a concurring opinion. The rights applicable to the states via the Fourteenth Amendment should be identical to those in the Bill of Rights, Black argued, and not just similar to their Bill of Rights counterparts, as was the case under the Twining theory.

INCORPORATION OF THE BILL OF RIGHTS

INCORPORATED
First Amendment’s prohibition on the establishment of religion (Everson v. Board of Education 1947)
First Amendment’s free exercise of religion (Cantwell v. Connecticut 1940)
First Amendment’s freedom of speech (Gitlow v. New York 1925)
First Amendment’s freedom of the press (Near v. Minnesota 1931)
First Amendment’s freedom of assembly (De Jonge v. Oregon 1937)
Fourth Amendment’s ban on unreasonable searches and seizures (Wolf v. Colorado 1947)
Fourth Amendment’s exclusionary rule (Mapp v. Ohio 1961)
Fifth Amendment’s ban on compulsory self-incrimination (Malloy v. Hogan 1964)
Fifth Amendment’s ban on double jeopardy (Benton v. Maryland 1969)
Sixth Amendment’s right of notice (Cole v. Arkansas 1948)
Sixth Amendment’s right to a public trial (In re Oliver 1948)
Sixth Amendment’s right to counsel (Gideon v. Wainwright 1963)
Sixth Amendment’s right to confront witnesses (Pointer v. Texas 1965)
Sixth Amendment’s right to an impartial jury (Parker v. Gladden 1966)
Sixth Amendment’s right to a speedy trial (Klopfer v. North Carolina 1967)
Sixth Amendment’s right to compulsory process (Washington v. Texas 1967)
Sixth Amendment’s right to a jury trial in criminal cases (Duncan v. Louisiana 1968)
Eighth Amendment’s ban on excessive bail (Schilb v. Kuebel 1971)
Eighth Amendment’s ban on cruel and unusual punishments (Robinson v. California 1962)
NOT INCORPORATED
Second Amendment’s right to bear arms
Third Amendment’s ban on the quartering of soldiers
Fifth Amendment’s right to indictment by a grand jury
Seventh Amendment’s right to a jury trial in civil cases
Eighth Amendment’s ban on excessive fines

The Adamson case was the high tide of total incorporationism, since that position would never again receive as much support on the Court as it did in 1947. And despite Justice Black’s attack on the Twining theory, it continued to guide the Court’s decisions regarding the nationalization process in the field of criminal procedure until the 1960s. Curiously, however, the Twining theory was abandoned without discussion by the Court in the field of First Amendment freedoms in the 1940s. At that time, the Court in case after case began to refer to the First Amendment rights applicable to the states as identical to those protected by the First Amendment and not as only similar as under the Twining theory. Paradoxically, however, the Court continued to adhere to the Twining theory in the field of criminal procedure.

By 1960, an intermediate position had emerged on the Supreme Court between the supporters of the Twining theory of nationalization and the total incorporation position, which continued to be supported by Justices Hugo Black and William O. Douglas. This intermediate position, supported by Chief Justice Earl Warren and Justice William Brennan, rejected total incorporation but supported the position that most but not all of the rights in the Bill of Rights should apply to the states via the Due Process Clause of the Fourteenth Amendment. This “selective incorporation” position also agreed with the total incorporation position on an important point—that is, the selective incorporationists supported the proposition that if a right in the Bill of Rights applied to the states, it should be identical to the same right in the Bill of Rights and not just similar as under the Twining theory. The incorporationists, whether selective or total, thus agreed that any right nationalized via the Due Process Clause had the same scope and meaning in its application to the states as it had as a limitation on the power of the national government in the Bill of Rights.

In 1961, the incorporationist approach to the nationalization process secured a breakthrough victory in Mapp v. Ohio. In 1949, in accordance with the Twining theory, the Court had ruled that the Due Process Clause protected a right against unreasonable searches and seizures similar to that in the Fourth Amendment, but that only the “core” of the prohibition in the Fourth Amendment applied to the states and not the Fourth Amendment itself. Additionally, the Court had held, the federal exclusionary rule, prohibiting the admission in criminal trials of evidence seized in violation of the Fourth Amendment, did not apply to criminal proceedings in the state courts. In the Mapp case, however, the Court held not only that the Fourth Amendment applied to the states via the Due Process Clause but also that evidence seized by state officers in violation of the Fourth and Fourteenth Amendments should be excluded in state criminal trials. Although the incorporationists did not command a majority on the Court in 1961, a year later the retirement of two supporters of the Twining theory and their replacement with supporters of the selective incorporation approach solidified an incorporationist majority on the Court, with the result that the Twining theory was scuttled in the field of criminal procedure as it had been in the field of First Amendment freedoms in the 1940s. Between 1962 and 1969, therefore, there occurred a series of incorporationist decisions by the Court applying most of the criminal procedure provisions of the Bill of Rights to the states in the identical form as they applied as limitations of the power of the national government. The provisions incorporated during this period included the prohibition of cruel and unusual punishments in the Eighth Amendment (1962); the full right to counsel provision of the Sixth Amendment (1963); the prohibition of compulsory self-incrimination of the Fifth Amendment (1964), reversing Twining v. New Jersey (1908) and Adamson v. California (1947); the right to confront and cross-examine witnesses in the Sixth Amendment (1965); the right to a speedy trial and to subpoena witnesses to testify for a defendant in the Sixth Amendment (1967); the right to a jury trial in state criminal cases guaranteed in the Sixth Amendment (1968), reversing the Court’s earlier 1900 decision (Maxwell v. Dow) that jury trials were not required in state criminal cases; and finally, the prohibition of double jeopardy in the Fifth Amendment (1969), reversing Palko v. Connecticut (1937).

The only provisions of the Bill of Rights that were not made applicable to the states via the Due Process Clause by 1969 were the Second Amendment’s provisions relating to the right to bear arms, the Third Amendment’s prohibition of quartering troops in persons’ houses, the requirement of a grand jury indictment in serious criminal cases in the Fifth Amendment, the Seventh Amendment’s requirement of a jury trial in all civil cases involving more than $20, and the prohibition of excessive fines and bail in the Eighth Amendment. Most, but not all, of the rights in the Bill of Rights have thus now been made applicable as restrictions of the powers of state and local governments. And the process of nationalizing the Bill of Rights has converted the Due Process Clause of the Fourteenth Amendment into a second American Bill of Rights more important than the original Bill of Rights adopted as a part of the Constitution in 1791.

BIBLIOGRAPHY:

Richard C. Cortner, The Supreme Court and the Second Bill of Rights (Madison: University of Wisconsin Press, 1981); and William E. Leuchtenburg, The Supreme Court Reborn (New York: Oxford University Press, 1995).

Richard C. Cortner

Last updated: 2006

SEE ALSO: Adamson v. California; Barron v. Baltimore; Bill of Rights; Black, Hugo L.; Fourteenth Amendment; Frankfurter, Felix; Marshall, John; Palko v. Connecticut; Slaughterhouse Cases