Intro.4 Bill of Rights

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. Again, on September 14, Pinckney and Gerry sought to add a provision that the liberty of the Press should be inviolably observed—. 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. 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 forwarded to the states, perhaps the belief, asserted by the defenders of the Constitution when the absence of a bill of rights became critical, 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.

In any event, the opponents of ratification soon made the absence of a bill of rights a major argument, and some friends of the document, such as Jefferson, strongly urged amendment to include a declaration of rights. Several state conventions ratified while urging that the new Congress to be convened propose such amendments, 124 amendments in all being put forward by these states. Although some dispute has occurred with regard to the obligation of the first Congress to propose amendments, Madison at least had no doubts and introduced a series of proposals, which he had difficulty claiming the interest of the rest of Congress in considering. At length, the House of Representatives adopted 17 proposals; the Senate rejected two and reduced the remainder to twelve, which were accepted by the House and sent on to the states where ten were ratified and the other two did not receive the requisite number of concurring states.

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 – 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. 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 repeatedly pressed upon the Supreme Court. By a long series of decisions, beginning with the opinion of Chief Justice Marshall in Barron v. Baltimore, the argument was consistently rejected. Nevertheless, the enduring vitality of natural law concepts encouraged renewed appeals for judicial protection through application of the Bill of Rights.

The Fourteenth Amendment and Incorporation

Following the ratification of the Fourteenth Amendment, litigants disadvantaged by state laws and policies first resorted unsuccessfully to the Privileges or Immunities Clause of § 1 for judicial protection. Then, claimants seized upon the Due Process Clause of the Fourteenth Amendment as guaranteeing certain fundamental and essential safeguards, without pressing the point of the applicability of the Bill of Rights. 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 fundamental rights of man, they were privileges and immunities of citizens of the United States and were now protected against state abridgment by the Fourteenth Amendment. This case the Court decided on other grounds, but in a series of subsequent cases it confronted the argument and rejected it, though over the dissent of the elder Justice Harlan, who argued that the Fourteenth Amendment in effect incorporated the Bill of Rights and made them effective restraints on the states. Until 1947, this dissent made no headway, but in Adamson v. California a minority of four Justices adopted it. Justice Black, joined by three others, contended that his researches into the history of the Fourteenth Amendment left him in no doubt that the language of the first section of the Fourteenth Amendment, taken as a whole, was thought by those responsible for its submission to the people, and by those who opposed its submission, sufficiently explicit to guarantee that thereafter no state could deprive its citizens of the privileges and protections of the Bill of Rights. Scholarly research stimulated by Justice Black's view tended to discount the validity of much of the history recited by him and to find in the debates in Congress and in the ratifying conventions no support for his contention. Other scholars, going beyond the immediate debates, found in the pre- and post-Civil War period a substantial body of abolitionist constitutional thought which could be shown to have greatly influenced the principal architects, and observed that all three formulations of § 1, privileges and immunities, due process, and equal protection, had long been in use as shorthand descriptions for the principal provisions of the Bill of Rights.

Unresolved perhaps in theory, the controversy in fact has been mostly mooted through the selective incorporation of a majority of the provisions of the Bill of Rights. This process seems to have had its beginnings in an 1897 case in which the Court, without mentioning 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. Then, in Twining v. New Jersey 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 action, 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 enumerated 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, 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 Fourteenth 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 character. The doctrine of this period was best formulated by Justice Cardozo, who observed that the Due Process Clause of the Fourteenth 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 to be ranked as fundamental, because certain proscriptions were implicit in the concept of ordered 'liberty.'

As late as 1958, Justice Harlan asserted in an opinion of the Court that a certain state practice fell afoul of the Fourteenth Amendment because [i]t is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the 'liberty' assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech . . . .

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 provisions of the Bill of Rights. Thus, in Malloy v. Hogan, Justice Brennan wrote: We have held that the guarantees of the First Amendment, 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 Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment. And Justice Clark wrote: First, this Court has decisively settled that the First Amendment's mandate that 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof' has been made wholly applicable to the States by the Fourteenth Amendment. Similar language asserting that particular provisions of the Bill of Rights have been applied to the states through the Fourteenth Amendment's Due Process Clause may be found in numerous cases. Most of the provisions have now been so applied.

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 principal 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, and has rejected the notion that the Fourteenth Amendment applies to the State only a 'watered-down, subjective version of the individual guarantees of the Bill of Rights.' Those who have argued for the application of a dual-standard test of due process for the Federal Government and the states, most notably Justice Harlan, but including Justice Stewart, Justice Fortas, Justice Powell, and Justice Rehnquist, have not only rejected incorporation, but have also argued that, if the same standards are to apply, the standards previously developed for the Federal Government would have to be diluted in order to give the states more leeway in the operation of their criminal justice systems. The latter result seems to have been reached for application of the jury trial guarantee of the Sixth Amendment.