Government by Judiciary

8. Incorporation of the Bill of Rights in the Fourteenth Amendment

Judiciary_151-200.indd 5 5/7/11 1:07 PM 8 Incorporation ofthe Bill ofRights in the Fourteenth Amendment INVOCATION of the Bill of Rights against the States is of fairly recent origin,1 whether it be regarded within the older framework of "adoption" or the more recent theory of "incorporation."2 From the First Amendment's "Congress shall make no law" may be gathered that it was to apply exclusively to Congress, and it was held in Barron v. Baltimore3 that the Bill of Rights had no application to the States, as in fact the First Congress, which drafted the Bill, had earlier made clear.4 Jusr . Henkin, "Some Reflections on Current Constitutional Controversies," I09 U. Pa. L. Rev. 637, 644; Lusky I59· z. For the difference between "incorporation" and "absorption," see Felix Frankfurter, "Memorandum on 'Incorporation' of the Bill of Rights into the Due Process Clause of the Fourteenth Amendment," 78 Harv. L. Rev. 746, 747-748 (I965). For "adoption" see infra Chapter I4 at notes 99-122. 3· 32 U.S. (7 Pet.) 243 (r833). 4· It has been little noticed that, as Egbert Benson, speaking with reference to freedom of speech and press, said, all the Committee of Eleven to whom the amendments had been referred "meant to provide against was their being infringed by the [federal] Government." I AnnalsofCongress 732· Madison urged that "the State governments are as liable to attack these invaluable privileges as the General Government is, and therefore ought to be as cautiously guarded against." Id. 441. But his attempt failed. Charles Warren , "The New 'Liberty' under the Fourteenth Amendment," 39 Harv. L. Rev. 43I, 433435 (1926). T he drive was for protection against the federal government; as Thomas Tucker said, "Five important States have pretty plainly expressed their apprehensions of the danger to which the rights of their citizens are exposed." I Annals of Congress 757. Elbridge Gerry observed: "This declaration of rights, I take it, is designed to secure the people against the maladministration ofthe [federal] Government." Id. 749·EarlierJames Jackson asked, "Who are Congress, that such apprehensions should be entertained of 1 55 Judiciary_151-200.indd 6 5/7/11 1:07 PM GOVERNMENT BY JUDICIARY tice Harlan spoke truly in stating that "every member of the Court for at least the last 1 35 years has agreed that our Founders did not consider the requirements of the Bill of Rights so fundamental that they should operate directly against the States."5 And for a long time the Supreme Court found that the Fourteenth Amendment had made no change in this respect.6 By means of "selective" incorporation or adoption the Court has worked "a revolutionary change in the criminal process"7 of the States. Some consider that the Court was "trying to legislate a detailed criminal code for a continental country."8 Historically the citizenry have relied upon the States for protection, and such protection was afforded before the Constitutional Convention by a Bill of Rights in virtually every state Constitution. It was not fear of State misgovernment but distrust of the remote federal newcomer that fueled the demand for a federal Bill of Rights which would supply the same protection against the federal government that State Constitutions already provided against the States. This was understood by the framers of the Fourteenth Amendment,9 and their own attachment to State sovereignty led them to refrain from intruding beyond the ban on discrimination against blacks with respect to certain rights. All else, including suffrage, was left to the States. In particular, Chairman Wilson them?" Id. 442. In presenting the amendments Madison explained that "the abuse of the powers of the General Government may be guarded against in a more secure manner." Id. 432· He added, "Ifthere was reason for restraining the State Governments [by State constitutions] from exercising this power, there is like reason for restraining the Federal Government." Id. 439· T he view that prevailed was that of T homas Tucker: "It will be much better, I apprehend, to leave the State Governments to themselves, and not to interfere with them more than we already do." Id. 755· 5· Duncan v. Louisiana, 391 U .S. 145, 173 (1968), dissenting opinion in which Justice Stewart concurred. 6. The cases are discussed in Stanley Morrison, "Does the Fourteenth Amendment Incorporate the Bill of Rights?" 2 Stan. L. Rev. 140 (I949). 7· Lusky I6I. 8. Anthony Lewis, "A Man Born to Act, Not to Muse," in Levy, Ulttrren I5I, 159. 9...