The Martialist: The Magazine For Those Who Fight Unfairly

The first 10 amendments to the Constitution, adopted in 1791, constitute the
Bill of Rights. Its sole purpose was to protect the individual against acts of
the federal government. The result was a lack of federal constitutional
protection of the individual against acts of state governments (other than a few
individual rights guaranteed in the body of the Constitution proper).

The post Civil War enactments of the 13th, 14th, and 15th Amendments changed
this situation. These amendments were enacted specifically to bar discrimination
by states against individuals, especially the newly freed slaves. The drafters
of the 14th Amendment intended that its “Privileges and Immunities”
clause would be the means for protecting these rights from state interference.

However, in the Slaughterhouse Cases (1872), the Supreme Court, in a 5-4
decision, gave the “Privileges and Immunities” clause a very narrow
reading. The Court held that the clause prohibited states merely from infringing
upon the rights of national citizenship — those rights peculiar to an
individual’s relationship to the federal government. Justice Miller held that
the fundamental civil rights of the individual were derived from state law and
constitutions and not the federal government.

The dissenting opinion objected by pointing out that the 14th Amendment was
designed to guarantee freedom and equality to the recently emancipated slaves,
and that the “Privileges and Immunities” clauses was to protect these
rights against infringement by state governments. The majority’s holding would,
in effect, add no more protection than existed prior to the adoption of the
Amendment, thus making the clause meaningless. Although the dissenters in the Slaughterhouse
Cases held that the “Privileges and Immunities” clause guaranteed
the fundamental rights of U.S. citizens against infringement by the states, the
majority’s opinion has prevailed to this day, and the clause remains limited to
a few rights of national citizenship. (Examples of such national rights include
the right to interstate travel and the right to vote in national elections.)

Instead of the “Privileges and Immunities” clause, the “Due
Process” clause of the 14th Amendment became the means by which various
rights found in the Bill of Rights were “incorporated” and made
binding on state governments. This has occurred through a process of
“Selective Incorporation” — a process which provides few guidelines
or boundaries as to what is a “fundamental right” protected from state
government infringement by “incorporation” through the “Due
Process” clause. Furthermore, the “Selective Incorporation” view
rejects the “Total Incorporation” approach, which holds that the
entire Bill of Rights is incorporated through the 14th Amendment and made
effective against state action.

“Selective Incorporation” has resulted in judges and courts
interpreting the term “liberty” found in the 14th Amendment without
regard to the rights guaranteed in the Bill of Rights. Only those liberties
found in the Bill of Rights which a judge finds to be “fundamental”
are selectively incorporated via the 14th Amendment and thereby protected
against state interference. In Palko v. Connecticut (1937), Justice
Cardozo held that the test was wheter the Bill of Rights guarantee in question
is of “the very essence of a scheme of ordered liberty” and one of the
“fundamental principles of liberty and justice which lie at the base of all
our civil and political institutions.” Thus, the Court defined rights as
being of two classes: fundamental principles of liberty which would be
incorporated through the 14th Amendment and made effective against the states,
and “not so fundamental” rights which would not be incorporated.

Furthermore, the selective incorporationists have held that the fundamental
rights incorporated by the 14th Amendment and protected against state
interference are not limited to what is found in the Bill of Rights. In Adamson
v. California (1947), Justice Frankfurter, in his concurring opinion, stated
that the 14th Amendment “Due Process” clause has an “independent
potency” of its own, which must be ascertained on a case-by-case basis by
examining whether the challenged governmental action offends “those canons
of decency and fairness which express the notions of justice of English-speaking
peoples.” Thus, in In Re Winship (1970), the Supreme Court held that
the requirement that the government provide “proof beyond a reasonable
doubt” in a criminal case, was binding in state trials, as it was one of
the “essentials of due process and fair treatment,” even though there
is no specific provision in the Bill of Rights which imposes such requirement.

Dissenting in Adamson v. California, Justice Black attacked the
majority’s “fundamental rights” approach as permitting the Court to
act as a super legislature enforcing its own social and moral theories and
goals, leaving citizens without assured rights and granting the Court an
unauthorized power to define protected rights at will. Justice Black argued
that the 14th Amendment, taken as a whole, required the application of the
Bill of Rights to the states. Such “Total Incorporation” would
protect all of the guarantees specified in the Bill of Rights against adverse
state government action, enhancing judicial objectivity and greater certainty,
while conforming to the intent of the framers of the 14th Amendment. There is
persuasive evidence that the 14th Amendment’s framers intended “Total
Incorporation.”

While the “Selective Incorporation” theory has been applied by the
Supreme Court, the test used to determine whether a right is fundamental has
changed. Where Justice Cardozo incorporated only those particular guarantees in
the Bill of Rights which were “implicit in the concept of ordered
liberty” and which, if violated, would “shock the conscience of
mankind,” the Warren Court went further by incorporating any guarantee,
whether explicitly mentioned in the Bill of Rights or not, which was
“fundamental in the context of the [judicial] process maintained by the
American states” or “fundamental to the American scheme of
justice,” even though a “fair and enlightened system of justice”
did not necessarily require it.

The Supreme Court muddied the waters further by holding in San Antonio
Independent School District v. Rodriguez (1973) that a right guaranteed in
the Bill of Rights is a fundamental right. Though the Court did not specifically
overrule the concept of “Selective Incorporation,” this holding may
signal the Supreme Court’s approval of the “Total Incorporation”
approach.

Under the process of “Selective Incorporation,” most of the principal
guarantees of the Bill of Rights have been incorporated and made applicable to
the states. Provisions that have not yet been incorporated include the 3rd and
7th Amendments, the right to grand jury indictment of the 5th Amendment, the
guarantee of freedom from excessive bail of the 8th Amendment, and the right to
keep and bear arms of the 2nd Amendment.