THE U.S. CONSTITUTIONTHE U.S. CONSTITUTION
The Constitution of the United States of America was ratified by the necessary number of States in 1789. But ratification came with the tacit understanding that the First Congress of the United States would draft a Bill of Rights for submission to the States for ratification.
The call for a Bill of Rights was due to the fear, at the time, of the power of the federal government. That the bill of rights was thought of as only a restriction of the national government's power to infringe individual liberties is supported by The Federalist (No, 84), in which Alexander Hamilton argued that since the federal government could exercise only those powers specifically granted (enumerated powers), then it would both unnecessary and unwise to prohibit the federal government from doing things which were clearly outside the scope of the powers granted to it by the people.
The House of Representatives of the First Congress drafted seventeen amendments to the Constitution, among which the 14th stated: "no state should infringe the right of trial by jury in criminal cases, nor the rights of conscience, nor the freedom of speech or of the press." This amendment, which was rejected by the Senate, was the only one which specifically restricting the power of the states.
Barren v. Baltimore, 32 U.S. 243 (1833). City, while paving its streets, changed the natural courses of some streams. The result was that Barron's wharf, which had been in the deepest waters in the harbor, became clogged with sand and gravel and practically useless as a wharf.
Barron alleged that by diverting the streams and making his wharf useless to shipping, the city had engaged in a taking of private property for public purpose without just compensation, in violation of the 5th Amendment of the U.S. Constitution.
Is he right? No. The 5th Amendment provision applies solely as a limitation on the exercise of power by the national government.
Looked at Art I, Sec. 9 and 10, as well as rest of Constitution. Noted that sometimes the language used was solely applicable to Congress, sometimes used a general term, and sometimes referred to States.
SECTION 9. (1) The migration....shall not be
prohibited by Congress....
(3) No bill of attainder or ex post
facto law shall be passed.
SECTION 10. (1) No State shall ...pass any bill of attainder, ex post facto law,..."
(2) No State shall....
(3) No State shall...."
Hurtado v. California, 110 U.S. 516 (1884).
Hurtado was convicted of murder and sentenced to hang. In his appeal, he claims he was denied due process of law as guaranteed by the 14th Amendment, because he was brought before the court on an information (complaint) of the prosecutor, rather than by indictment of a grand jury.
The issue is what does due process of law mean? Hurtado argues that due process means old established processes of law and since the requirement of indictment by grand jury for felony cases is an old requirement of common law, then he was denied due process of law.
Court looked at the 5th Amendment and 14th Amendment and saw the same phrase " ..nor be deprived of life, liberty, or property, without due process of law..."
But Court also saw that 5th Amendment contained the phrase "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger..."
Court used a rule of construction regarding unnecessary words. They are not used by drafters of laws. If due process of law included the right of indictment by grand jury, as Hurtado claims the phrase means in the 14th Amendment, then the 5th Amendment would not have specifically mentioned the term presentment or indictment by grand jury, since the same Amendment also includes due process of law.
Twining v. New Jersey (1908). Defendant was convicted based upon his forced self-incrimination. He appealed, saying that being forced into incrimination violated the due process clause of the 14th Amendment. In reviewing just what due process of law was, the court conceded that some of the things listed in the first 8 Amendments could be might be of a nature to be an "immutable principle of justice" and therefore protected against state action, because it would be a denial of due process of law. The court looked at self-incrimination and held that it was merely a just and useful principle of law but that it did not rank "with the right to a hearing before condemnation, the immunity from arbitrary power not acting by general law, and the inviolability of private property"
Mallory v. Hogan (1964) overruled Twining and held the protection against self-incrimination essential to due process of law.
Gilbert V. Minnesota (1920). In this case the court assumed for the sake of argument that freedom of speech as a natural and inherent right but held that it was not violated.
Meyer v. Nebraska (1923). Nebraska statute forbidding the teaching of any language except English in any private, parochial or public school. Held conviction violated the due process clause of the 14th Amendment, saying "(w)ithout doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men."
Gitlow v. New York (1925). Gitlow was passing out pamphlets which urged workers to revolt, in violation of New York's Criminal Anarchy Act of 1902. The court said that "...we may and do assume that freedom of speech and of the press - which are protected by the First Amendment from abridgment by Congress - are among the fundamental personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the states." Gitlow's convicted was upheld on the basis that his freedom of speech was not violated.
Near v. Minnesota (1931). Help state statute void on the grounds that it denied due process by unreasonable restricting freedom of speech and press.
Hamilton v. Board of Regents of the University of California (1934). Said freedom of religion was covered by the due process clause of the 14th Amendment, but that Hamilton's freedom of religion was not infringed by requiring him to take military drilling as a condition of attending the state university.
De Jonge v. Oregon (1937) Freedom of assembly added to the list of rights protected by the due process clause of the 14th Amendment.
Everson v. Board of Education (1947). Prohibition of state establishment of religion added to the rights protected by the 14th Amendment's due process clause.
These cases were decided on the basis that the due process clause protects liberty and the liberty includes freedom of speech, press, religion, and assembly.
Powell v. Alabama (The Scottsboro cases) 287 U.S. 45 (1932). In a capital case for rape, where the defendants were young, ignorant, and illiterate, failure of the court to appoint counsel was a denial of right of counsel as protected by the due process clause of the 14th Amendment.
Palko V. Connecticut, 302 U.S. 319 (1937). In this case, defendant was indicted for first degree murder and convicted of 2nd degree murder and sentenced to life imprisonment. The state, pursuant to a legislative statute, appealed the decision. The appellate court reversed the judgment and ordered a new trial. The appellate court found that there had been a error prejudical to the state in the trial. Upon retrial, the defendant was convicted of first degree murder and sentenced to death. Defendant appealed on the basis that the second trial violated the due process clause of the 14th Amendment by putting him twice in jeopardy for the same offense.
The Palko decision talks about absorption of certain of the articles of the federal bill of rights into the 14th Amendment. The court said that if they were absorbed, it was because the absorption had as its source the belief that neither liberty or justice would exist if they were sacrificed. It then went on to talk about what aspects of rights were "fundamental principles of liberty and justice which lie at the base of all our civil and political institutions? The court noted that condemnation shall be rendered after trail. And then only after a real one, not a sham. It looked at previous decision of Powell and noted that the decision did not turn on the 6th Amendment right of counsel, but rather under the circumstances of that particular case, the benefit of counsel was necessary to the substance of a fair hearing before condemnation. In Palko, the court asked the question, where the state is not trying to convict based upon a second indictment, but is instead trying to obtain a fair trial without error, "Does this violate those fundamental principles of liberty and justice which lies at the base of all our civil and political institutions?" The court said no. The court pointed out if the error were against the accused, he could appeal and get a new trial. And the court noted that in this case the state was not trying to wear down the defendant with accumulated trials.
Selective incorporation in Action:
Constitution Provision Case Year
Religious freedom(generally) Hamilton v. Regents of California 1934
Religious establishment Everson v. Bd. of Educ. 1947
Free exercise Cantwell v. Conn. 1940
Free Speech Gilbert v. Minn. 1920
Gitlow v. New York 1925
Fiske v. Kansas 1927
Free Press Near v. Minn. 1931
Assembly Delonge v. Oregon 1937
Petition Hague v. CIO 1937
Fourth Amendment
Search and Seizure Wolf v. Colo. 1949
Fifth Amendment
Double Jeopardy Benton v. Maryland 1969
Self-incrimination Malloy v. Hogan 1964
Just compensation Missouri Pacific RR v.
Nebraska 1896
Chicago, Burlington &
Quincy RR v. Chicago 1897
Sixth Amendment
Speedy trial Klopfer v. N. C. 1967
Public trial In re Oliver 1948
Impartial jury Parker v. Gladden 1966
Jury trial (serious crimes) Duncan v. Louis. 1968
Notice Cole v. Arkansas 1947
Confrontation Pointer v. Texas 1965
Compulsory process Washington v. Texas 1967
Counsel in capital cases Powell v. Alabama 1932
Counsel in felony cases Gideon v. Wainwright 1963
Eight Amendment
Cruel & unusual punishment Robinson v. Calif. 1972
Ninth Amendment
privacy Griswold v. Conn. 1965
Amendments not incorporated:
2nd Amend right to keep and bear arms
3rd Amend right against quartering soldiers
5th Amend right to a grad jury hearing
7th Amend right to a jury trial in civil cases
8th Amend right against excessive bail and fines.