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.
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.
In any event, the opponents of ratification soon made the absence of a bill of rights a major argument,
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
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.
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.
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.
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.
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,
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.
offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,
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,
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.
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,
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.'