The 14th Amendment and Incorporation of the Bill of Rights

Introduction: The Bill of Rights and the States

Throughout much of the 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 Fourteenth Amendment during the Reconstruction Period following the Civil War that the guarantees so valued by Americans began to be extended to state governments. The events leading up to the Civil War highlighted how leaving determinations about basic rights — such as freedom of speech, press, and religion — to the exclusive province of the states did not effectively work. It was the intent of the framers of the Fourteenth Amendment that such discretion be monitored by the national government.

Barron v. Baltimore and the Pre-Amendment Framework

The need for the enactment of the Fourteenth Amendment came to light in the case of Barron v. Mayor & City Council 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 on the argument that the Fifth Amendment applied only to actions by the federal government and offered no protection against state governments. The U.S. Supreme Court agreed with the City of Baltimore and affirmatively established that the Bill of Rights did not apply to the states.

Early Supreme Court Resistance to the 14th Amendment

The passage of the Fourteenth Amendment was viewed enthusiastically by proponents advocating the extension of the Bill of Rights to the various states; however, they were frustrated by the basic conservatism of the U.S. Supreme Court. Shortly after the amendment's passage, 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 Fourteenth Amendment — held that the most basic rights of the individual citizen had their source in state laws and constitutions. The Supreme Court refused to broadly apply the Fourteenth Amendment.

This restrictive application continued when the Supreme Court revisited the issue in Hurtado v. California (1884). In Hurtado, the Court rejected the argument that the Due Process Clause applied to the states, just as it had declined to extend the Privileges and Immunities Clause in the Slaughter-House Cases.

Conclusion: The 14th Amendment as a Second Bill of Rights

Of historical interest is the fact that when James Madison originally proposed the Bill of Rights, he suggested that its protections be applied to the states as well — but Congress rejected Madison's suggestion (Rakove, 1985). In the early years of the Republic, the Supreme Court did not address in any substantial way the application of the Bill of Rights to the states. The passage of the Fourteenth Amendment following the Civil War, however, offered the Supreme Court the opportunity to begin addressing the issue. The process began slowly, but once it started, the Court wasted little time ensuring that the Bill of Rights was guaranteed to everyone in both state and federal actions. In essence, the Fourteenth Amendment has been transformed by the Court into a second, unofficial Bill of Rights.

References

Barron v. Mayor of Baltimore, 32 U.S. 243 (U.S. Supreme Court February 16, 1833).

Brown v. Mississippi, 297 U.S. 278 (U.S. Supreme Court February 17, 1936).

Gideon v. Wainwright, 372 U.S. 335 (U.S. Supreme Court March 18, 1963).

Hurtado v. California, 110 U.S. 516 (U.S. Supreme Court March 3, 1884).

Malloy v. Hogan, 378 U.S. 1 (U.S. Supreme Court June 15, 1964).

Mapp v. Ohio, 367 U.S. 643 (U.S. Supreme Court June 19, 1961).

Pointer v. Texas, 375 U.S. 293 (U.S. Supreme Court April 5, 1965).

Powell v. Alabama, 287 U.S. 45 (U.S. Supreme Court November 7, 1932).

Rakove, J. N. (1985). James Madison and the Bill of Rights. Washington, D.C.: American Political Science Association and American Historical Association.

Robinson v. California, 370 U.S. 660 (U.S. Supreme Court June 25, 1962).

The Butcher's Benevolent Association of New Orleans v. The Crescent City Live-Stock Landing and Slaughter-House Company, 83 U.S. 36 (U.S. Supreme Court April 14, 1873).

Weeks v. United States, 232 U.S. 383 (U.S. Supreme Court February 24, 1914).