The Bill of Rights and Selective Incorporation
The Bill of Rights was an afterthought. It’s now the most litigated part of the Constitution.
Why a Bill of Rights?
The original Constitution contained few individual rights protections. The framers thought it unnecessary: the federal government had only enumerated powers, so why list things it couldn’t do anyway?
Anti-Federalists disagreed. They feared a powerful central government would trample liberties. No bill of rights, no ratification.
The compromise: ratify now, amend later. James Madison drafted twelve amendments; ten were ratified in 1791.
The First Ten Amendments
| Amendment | Protection |
|---|---|
| First | Religion, speech, press, assembly, petition |
| Second | Right to bear arms |
| Third | No quartering of soldiers |
| Fourth | No unreasonable searches and seizures |
| Fifth | Grand jury, no double jeopardy, no self-incrimination, due process, just compensation |
| Sixth | Speedy trial, jury, counsel, confrontation of witnesses |
| Seventh | Civil jury trial |
| Eighth | No excessive bail, no cruel and unusual punishment |
| Ninth | Unenumerated rights retained by the people |
| Tenth | Reserved powers to states and people |
The Original Limitation
Here’s the key point most people miss: the Bill of Rights originally applied only to the federal government.
States could (and did) establish official religions, restrict speech, and deny rights that the federal government couldn’t touch. The First Amendment begins “Congress shall make no law…” Not “No government shall…”
This changed after the Civil War.
The Fourteenth Amendment
Ratified in 1868, the Fourteenth Amendment fundamentally altered American federalism:
“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.”
Three clauses matter:
- Privileges or Immunities: Largely gutted by the Slaughterhouse Cases (1873)
- Due Process: Became the vehicle for incorporating rights against states
- Equal Protection: Foundation for civil rights law
Selective Incorporation
The Supreme Court has gradually applied most Bill of Rights protections to states through the Fourteenth Amendment’s Due Process Clause. This process is called selective incorporation.
How It Works
The Court asks: Is this right “fundamental to our scheme of ordered liberty”? If yes, it’s incorporated and applies to states.
Key Incorporation Cases
Gitlow v. New York (1925): Free speech incorporated. First major incorporation case.
Mapp v. Ohio (1961): Fourth Amendment exclusionary rule incorporated. Evidence obtained through illegal searches can’t be used in state courts.
Gideon v. Wainwright (1963): Right to counsel incorporated. States must provide attorneys to indigent defendants in felony cases.
McDonald v. Chicago (2010): Second Amendment incorporated. States can’t ban handgun ownership.
What’s Not Incorporated
A few rights remain unincorporated:
- Third Amendment (quartering of soldiers)
- Fifth Amendment grand jury requirement
- Seventh Amendment civil jury requirement
- Eighth Amendment excessive fines (partially)
These rarely arise, so there’s been no occasion to incorporate them.
Total vs. Selective Incorporation
Some justices (notably Hugo Black) argued for total incorporation: all Bill of Rights provisions should apply to states automatically.
The Court never adopted this view. Instead, it incorporates rights case by case, evaluating each provision’s fundamental importance.
The practical difference today is minimal. Almost everything has been incorporated.
Rights in Conflict
Rights aren’t absolute. They often conflict with each other and with government interests.
Free speech vs. public safety: Can you shout “fire” in a crowded theater? (Actually, you can. The original case saying otherwise, Schenck v. United States, was about anti-war pamphlets and has been largely abandoned.)
Religious freedom vs. civil rights: Can a baker refuse to make a wedding cake for a same-sex couple?
Gun rights vs. public safety: How far can government regulate firearms?
The Court balances these interests using various tests and standards of review.
The Takeaway
The Bill of Rights defines the relationship between individuals and government. Through selective incorporation, it now limits both federal and state power.
Understanding civil liberties means understanding:
- What each amendment protects
- How incorporation extended these protections to states
- Why rights require interpretation and aren’t self-defining
- How courts balance competing interests
The next articles will examine specific rights in detail, starting with the First Amendment.
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