Bill of Rights, Inc.
Rarely is there a Constitutional debate or discussion without mention of an amendment. That is probably because while the text of the Constitution establishes some rights, it mostly establishes the structure, powers and limitations of the federal government. The first ten amendments, known as the Bill of Rights, were added to clarify and further establish rights to the people and to states. Many of these already existed under the common law. The importance of most of these amendments cannot be disputed. Criminal law is rooted in the Fourth, Fifth and Sixth amendments. Freedom of speech and religion are perhaps the most commonly accepted building blocks of American freedom. The Second Amendment is also a major part of culture, perhaps more popular today than ever before.
So what if I told you that the Bill of Rights didn’t create and completely protect all of the rights it appeared to? Being a federalist system, the United States has two major levels of government: the federal government and state governments. With the exception of Article I, Sec. 10 which limits states’ powers, the U.S. Constitution and Bill of Rights were set to both create and limit federal power. The first ten amendments did not initially bind states. The Supreme Court held as such in 1833.
Many states had their own constitutions with similar (and sometimes greater) rights; others did not. A common example is–despite Article VI which prohibits a religious test for public office and the First Amendment’s establishment clause–some states did require elected officials to believe in God and even had official state religions.
Enter the Fourteenth Amendment which was ratified in 1868. The all-important amendment is the basis of civil rights law and what really brought the Constitution home to the American people. Due process and equal protection are the two most significant clauses in all of American law. Now due process, which originated in England starting with the Magna Carta and its progeny, is mentioned in the Fifth Amendment: “no person…may be deprived of life, liberty or property, without due process of law.” That initially only applied to the federal government. In an effort to prevent states from legally oppressing former slaves following the Civil War and Thirteenth Amendment, the Fourteenth Amendment contains its own due process clause: “nor shall any state deprive any person of life, liberty or property without due process of law.”
Nearly a half-century later, the Supreme Court started using the Fourteenth Amendment due process clause to incorporate previously federal limitations from the Bill of Rights against the states. In Gitlow v. New York in 1925, the Court held that the freedoms of speech and the press were among the fundamental rights that were protected under the due process clause of the Fourteenth and bound them to the states. The incorporation of more rights followed but was and is still gradual. The free exercise clause of the First Amendment was incorporated in 1940 with Cantwell v. Connecticut. The Fourth Amendment’s prohibition on unreasonable searches and seizures was bound to the states in 1949 with the exclusionary rule coming in 1961 with Mapp v. Ohio. Most other criminal rights, including double jeopardy, speedy trial, right to counsel and the bar of self-incrimination came in the 1960′s. The Second Amendment? It was not incorporated and binding on states until the Heller and McDonald decisions of 2008 and 2010.
Some rights from the Bill of Rights have not been incorporated against the states. Trial by jury in civil actions (Seventh Amendment) and grand jury indictments (Fifth) are two such examples. The Eighth Amendment prohibition on cruel and unusual punishment has been incorporated but the bar on excessive bail has not. States often have their own constitutional rights above the federal rights, such as Connecticut which has a right to bail.
The Fourteenth Amendment is back in the news with the immigration debate for the upcoming presidential election. Some candidates have expressed disagreement with and misunderstanding of the amendment while others have They should become more aware of its connection to the amendments they claim to hold sacred.