Federal government power over states under the 14th Amendment and Bill of Rights

¶ … history of the United States the Bill of Rights, one of the most precious of American legal documents, was not applied to the states. It was not until the passage of the 14th Amendment in the Reconstruction Period following the Civil War that the guarantees so valued by Americans began to be applied to the states. The events leading up to the Civil War highlighted how leaving determinations as to basic rights such as freedom of speech, press, and religion to the exclusive province of the states did not effectively work and it was the intent of the framers of the 14th Amendment that such discretion be monitored by the national government.

The need for the enactment of the 14th Amendment came to light in the case of Barron v. Mayor & City Council of Baltimore in 1833 (Barron v. Mayor of Baltimore, 1833). Barron involved a Maryland wharf owner who brought a lawsuit against the City of Baltimore for violating the Fifth Amendment's eminent domain clause. The City of Baltimore defended the suit based on the argument that the Fifth Amendment applied only to actions by the federal government and offers no protection against state governments. The U.S. Supreme Court agreed with the City of Baltimore and affirmatively established that the Bill or Rights did not apply to the states.

The passage of the 14th Amendment was viewed enthusiastically by proponents advocating the extension of the Bill or Rights to the various states, however, the proponents were frustrated by the basic conservatism of the U.S. Supreme Court. Shortly after the passage of the 14th Amendment, a series of cases consolidated for consideration by the Supreme Court and identified as the Slaughter House Cases provided insight into the mindset of the Court (The Butcher's Benevolent Association of New Orleans v. The Crescent City Live-Stock Landing and Slaughter-House Company, 1873). In Slaughter House, the Court, despite the 14th Amendment, held that the most basic rights of the individual citizen had their source in the state laws and constitutions. The Supreme Court refused to broadly apply the 14th Amendment.

This application continued as the Supreme Court visited the issue as to the application of the Due Process Clause in the case of Hurtado v California (Hurtado v California, 1884). In Hurtado, the Court rejected that argument that the Due Process Clause applied to the states just as the Court had done with the Privileges and Immunities Clause in the Slaughter House cases.

The Supreme Court remained consistent in its application of the14th Amendment but there was an indication that the door might be opening. In the case of Weeks v. United States, the Supreme Court finally applied the protections of the Due Process Clause to the states when it ruled that the procedures used by the San Francisco police constituted an illegal search when they performed a warrantless search (Weeks v. United States, 1914). Weeks not only opened the door for the Court's applying the Bill or Rights to the states through the 14th Amendment it also started the process of applying the exclusionary rule that prohibits the admission of illegally obtained evidence. Although Weeks applied the exclusionary rule to federal cases only, it provided a foreshadowing of what was to come in the area of criminal procedure and the 14th Amendment.

The explosion in the applying of the 14th Amendment to the states began with the Supreme Court's decision in Powell v. Alabama (Powell v. Alabama, 1932). In Powell, the Court began addressing the issue of what constituted a fair trial by requiring that indigents in capital cases must be afforded effective assistance of counsel and that this required that they be provided with appointed counsel. Powell was followed by the Court's decision in Brown v. Mississippi which threw out the coerced confession of a defendant in a state criminal case and was a harbinger of what would occur in the early 1960's by the Supreme Court led by Chief Justice Earl Warren (Brown v. Mississippi, 1936).

The Warren Court began to exercise its influence on the area of Constitutional Law in the late 50's as they began applying what became known as the doctrine of "selective incorporation." Under this doctrine, the Court began to apply the rights contained in the Bill of Rights to the states on a case by case basis until nearly all such rights were applied to the states on the same basis as they applied to the federal government.

The breakthrough case for this approach came in the case of Mapp v. Ohio (Mapp v. Ohio, 1961). In Mapp, the majority of the Court ruled that the full Fourth Amendment and the exclusionary rule forbidding the use of illegally seized evidence applied to the states via the due process clause. Once Mapp was decided, the Supreme Court began to issue a series of decisions that gradually applied the remaining amendments that constituted in the Bill of Rights to the states. In Robinson v. California (Robinson v. Calfornia, 1962), the Eighth Amendment (cruel and unusual punishment), in Gideon v Wainwright (Gideon v. Wainwright, 1963), the Sixth Amendment (assistance of counsel), in Malloy v. Hogan (Malloy v. Hogan, 1964) the Fifth Amendment (self-incrimination), and in Pointer v. Texas (Pointer v. Texas, 1965) the Sixth Amendment right to confront and cross-examine witnesses was applied to all state actions. By the time that the Warren Court had completed its term, the only rights contained in the Bill of Rights that had not been extended to the states by the Supreme Court were the provisions of the Second and Third Amendments and limited provisions of the Fifth, Seventh and Eighth Amendments.