Introduction
The debate over
whether the
Fourteenth Amendment makes applicable against the states all of the
protections
of the Bill of Rights is one of the most important and longest-lasting
debates involving interpretation of the U. S.
Constitution.
The Supreme Court's first interpretation of the scope of the Fourteenth
Amendment, adopted in 1868, was rendered in The Slaughterhouse Cases
just five years later. By a 5 to 4 vote the Court in that case
narrowly
interpreted the Privileges and Immunities Clause, thought to be the
most
likely basis for enforcing individual rights against states. In
subsequent
cases, attention focused on the Due Process Clause. Beginning in
the early twentieth century the Court began to selectively incorporate
some of the specific provisions of the Bill of Rights while rejecting
the
incorporation of others. The Court's test for choosing which
provisions--along
with all the accompanying baggage of decisions interpreting the federal
rights--were incorporated changed over time. The "modern view,"
as
reflected in cases such as Duncan vs Louisiana (1968) is that
provisions
of the Bill of Rights "fundamental to the American scheme of justice"
(such
as the right to trial by jury in a serious criminal case) were made
applicable
to the states by the Due Process Clause of the Fourteenth Amendment
whereas
other provisions (such as the right to a jury trial in a civil case
involving
more than $20) were not made applicable.
The Crescent City
Slaughterhouse--its monopoly was challenged
in the 1873 Slaughterhouse
Cases
Note that
there are several
possible positions that could be taken with respect to the
incorporation
debate. First, one could argue that the Fourteenth Amendment
(either
through the P & I Clause or the Due Process Clause) made the
specific
provisions of the Bill of Rights enforceable against the states and no
more. This was the view argued for by Justice Black.
Second,
one could argue that the provisions of the Bill of Rights are
essentially
irrelevant to interpretation of the Fourteenth Amendment, and that
violations
of the Due Process Clause are to be determined by a natural-law-like
tests
such as "Does the state's action shock the conscience?" or "Is the
state's
action inconsistent with our concept of ordered liberty"? This is the
"No
Incorporation" Theory advanced by Justice Frankfurter, among
others.
Third, one could take a position such as Justice White did in Duncan
that the Fourteenth Amendment incorporates certain fundamental
provisions,
but not other non-fundamental provisions. This view is often
called
the "Selective Incorporation" Theory. Finally, one could adopt
either
a "Selective Incorporation Plus" view or a "Total Incorporation Plus"
(see
Justice Murphy's view in Adamson, for example) view.
These
views hold that in addition to incorporating some or all of the
provisions
of the Bill of Rights, the Fourteenth Amendment also prohibits certain
other fundamental rights from being abridged by the states.
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THE DRED SCOTT CASE AND THE
ORIGINS OF "PRIVILEGES
AND IMMUNITIES"
The phrase "privileges and
immunities" appears more
than two dozen times in the notorious 1857 Supreme Court case of DredScott
v Sandford. The Court concluded that black persons were not
entitled
to the privileges and immunities of citizens, which the Court took
broadly
to include the rights to speak, bear arms, assemble, and travel
freely.
John Bingham, primary author of the Fourteenth Amendment, said that he
used the phrase "privileges and immunities" to specifically overturn
the
language of Scott v Sandford. The following passage comes
from the 1857 Scott decision:
"...For if they [blacks] were so
received, and entitled
to the privileges and immunities of citizens, it would exempt them from
the operation of the special laws and from the police regulations which
they considered to be necessary for their own safety. It would give to
persons of the negro race, who were recognized as citizens in any one
State
of the Union, the right to enter every other State whenever they
pleased,
singly or in companies, without pass or passport, and without
obstruction,
to sojourn there as long as they pleased, to go where they pleased at
every
hour of the day or night without molestation, unless they committed
some
violation of law for which a white man would be punished; and it would
give them the full liberty of speech in public and in private upon all
subjects upon which its own citizens might speak; to hold public
meetings
upon political affairs, and to keep and carry arms wherever they went.
And all of this would be done in the face of the subject race of the
same
color, both free and slaves, and inevitably producing discontent and
insubordination
among them, and endangering the peace and safety of the State."
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Cases
The
Slaughter-House Cases (1873)
Adamson
vs California (1947)
Duncan
vs. Louisiana (1968)
Antagonists in
the incorporation
debate: Justice Frankfurter (L) and Justice Black (R) and some rubber
chicken
The
Fourteenth Amendment (Section 1):
All persons born
or naturalized
in the United States, and subject to the jurisdiction thereof, are
citizens
of the United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any State
deprive
any person of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal protection of
the laws.
The
Bill of Rights
John Bingham, the principal
drafter of the Fourteenth Amendment
Incorporated
or Not Incorporated?
1st Amendment: Fully
incorporated.
2nd Amendment: No
Supreme
Court decision on incorporation since 1876 (when it was rejected).
3rd Amendment: No
Supreme
Court decision; 2nd Circuit found to be incorporated.
4th Amendment: Fully
incorporated.
5th Amendment:
Incorporated
except for clause guaranteeing criminal prosecution only on a grand
jury
indictment.
6th Amendment: Fully
incorporated.
7th Amendment: Not
incorporated.
8th Amendment:
Incorporated with respect to the protection agains "cruel and
unusual punishments," but no specific Supreme Court ruling on the
incorporation of the "excessive fines" and "excessive bail" protections.
Questions
1. Which theory
relating to
the incorporation is best supported by the history of the Fourteenth
Amendment?
2. What are
the pragmatic
reasons for favoring one or another theory relating to incorporation?
3. Even
assuming that
a specific provision of the Bill of Rights is "fundamental to the
American
scheme of justice," should we apply every decision marking the outer
limits
of the federal right to the states?
4. What
evidence should
we look to in determining whether a right is fundamental to the
American
scheme of justice? Whether history shows the right has always
been
respected? Whether history shows the right has been respected in
recent times? Whether or not the vast majority of states have
respected
the right in question? What the framers and ratifiers of the Bill
of Rights thought about the right? Whether or not we can imagine
a fair system of justice without the right in question?
5. If the
Fourteenth
Amendment was intended to make the provisions of the Bill of Rights
applicable
to the states, it was the P & I Clause, not the Due Process Clause,
that was meant to accomplish that. Is it too late for the Supreme
Court to correct its error?
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