THE EXERCISE OF JUDICIAL
REVIEW: THE 14th
AMENDMENT AND THE
NATIONALIZATION OF THE
BILL OF RIGHTS
Topic #18
The Bill of Rights and State
Governments
• Does the First Amendment prohibit a state
legislature (or a local council) from making a law
abridging the freedom of speech?
• Note: make sure that you understand, by the end of this topic, what
the phrase “nationalization of the Bill of Rights” means.
The Bill of Rights and State Governments
• Does the First Amendment prohibit a state legislature
from making a law abridging the freedom of speech?
– First Amendment: “Congress shall make no law . . . .”
• Some states still had established churches.
– Implied for other amendments?
– Political purpose of Bill of Rights:
• a concession to Antifederalists and to the states
• not to limit the powers of state governments
• most states had their own Bills of Rights
– However, there are some explicit limitations on the powers of
state government in the original Constitution, e,g.,Art I, Sec. 10:
• no ex post facto laws
• no bills of attainder
• no titles of nobility
– Barron v. Baltimore (1833): Bill of Rights puts limitations on the
powers of the federal government only.
The “Second Founding” of the U.S.
• The outcome of the Civil War changed the relationship
between the federal government and the states and
created considerably more consolidated union.
• The post-Civil War Amendments:
– 13th Amendment: Neither slavery nor involuntary servitude, except as a
punishment for crime whereof the party shall have been duly convicted,
shall exist within the United States, or any place subject to their
jurisdiction.
– 15th Amendment: The right of citizens of the United States to vote shall
not be denied or abridged by the United States or by any state on
account of race, color, or previous condition of servitude.
The 14th Amendment
Section 2. Representatives shall be apportioned among the several states
according to their respective numbers, counting the whole number of persons in
each state, excluding Indians not taxed. But when the right to vote at any election
for the choice of electors for President and Vice President of the United States,
Representatives in Congress, the executive and judicial officers of a state, or the
members of the legislature thereof, is denied to any of the male inhabitants of
such state, being 21 years of age, and citizens of the United States, or in any
way abridged, except for participation in rebellion, or other crime, the basis of
representation therein shall be reduced in the proportion which the number of
such male citizens shall bear to the whole number of male citizens twenty-one
years of age in such state.
Section 3. No person shall be a Senator or Representative in Congress, or elector
of President and Vice President, or hold any office, civil or military, under the
United States, or under any state, who, having previously taken an oath, as a
member of Congress, or as an officer of the United States, or as a member of
any state legislature, or as an executive or judicial officer of any state, to support
the Constitution of the United States, shall have engaged in insurrection or
rebellion against the same, or given aid or comfort to the enemies thereof. But
Congress may by a vote of two-thirds of each House, remove such disability.
Section 4. The validity of the public debt of the United States, authorized by law,
including debts incurred for payment of pensions and bounties for services in
suppressing insurrection or rebellion, shall not be questioned. But neither the
United States nor any state shall assume or pay any debt or obligation incurred in
aid of insurrection or rebellion against the United States, or any claim for the loss
or emancipation of any slave; but all such debts, obligations and claims shall be
held illegal and void.
The 14th Amendment (cont.)
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. [CITIZENSHIP CLAUSE]
No state shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States [PRIVILEGES AND
IMMUNITIES CLAUSE];
nor shall any state deprive any person of life, liberty, or property, without
due process of law [DUE PROCESS CLAUSE, cf. 5th Amendment];
nor deny to any person within its jurisdiction the equal protection of the
laws [EQUAL PROTECTION CLAUSE].
• The last three clauses clearly put quite broad constitutional
limitations on the powers of states (“no state shall . . . ”) for the first
time.
– Put otherwise, the U.S. Constitution for the first time provides people
with protection against certain kinds of abuse of by their state
governments.
– But what is the scope of this protection?
The 14th Amendment (cont.)
• The Due Process clause of the 14th Amendment is the
most highly litigated clause in the Constitution.
• The Equal Protection clause is not far behind.
• But the Privileges and Immunities clause is pretty much
dead letter.
– Some argued that that the clause was intended to make the Bill
of Rights apply to the states.
– A problem with this interpretation is that the Bill of Rights
protections all “persons,” while the privileges and immunities
clause protects only “citizens.”
• The specific historical intent of Section 1 of the 14th
Amendment is clear:
– To protect the rights of African-American ex-slaves against
abuse by their state governments when Southern states
regained self-government (with white majorities in every state
and a prospect of majority factional tyranny)
The 14th Amendment (cont.)
• The Supreme Court found two others uses for the Due
Process clause of the 14th Amendment:
– During its “laissez-faire” period:
• Corporations are persons within the meaning of the 14th
Amendment.
• Laws that regulate business corporations may deprive them
of property without due process of law.
• Thus the 14th Amendment puts substantive limits on the
power of state governments to regulate the economy
(Substantive Due Process).
• At the same time, a narrow interpretation of the Interstate
Commerce clause (e.g., Hammer v. Dagenhart) limits the
power of the federal government to regulate the economy.
– More recently (1920-1965) the SC has used the Due
Process (not the Privileges and Immunities) clause to
make most provisions of the Bill of Rights applicable
to state governments.
The Nationalization of the Bill of Rights
• This refers to the process by which the Supreme Court has incorporated
provisions of the Bill of Rights into the Due Process Clause of the 14th
Amendment and thereby made them applicable to the states.
• This was first accomplished in the 1920s with respect to provisions of
the First Amendment.
– Gitlow v. New York (1925): the First Amendment, incorporated into the Due
Process clause of the 14th Amendments, prohibits the New York (or any
other) state legislature (or city council, etc.) from making a law that abridges
the freedom of speech.
– Near v. Minnesota (1931): the first time the SC declared a state law
unconstitutional for abridging the freedom of speech.
– Engle v.Vitale (1963): the school prayer case:
• The New York State Board of Education had drafted a prayer to be recited in
public schools.
• Whether or not states could establish a religion was no longer in dispute.
• The constitutional question was whether this action constituted “an establishment
of religion.”
Nationalization of the Bill of Rights (cont.)
• The Due Process clause would seem more obviously to
require states to conduct criminal prosecutions in a
manner consistent with the “subject rights” outlined in the
Bill of Rights (Amendments 4-8).
• Perhaps surprisingly, many these rights were incorporated
into the 14th Amendment Due Process clause later than
the “citizen [and religious] rights” of the First Amendment.
• The SC had quite early held that the Due Process clause
requires states to give defendants a “fair trial.”
– But what are the specific elements that are required for a fair trial?
– Amendments 4-8 (which have governed federal criminal trials
since 1791) seem to provide a good check list.
– Remember: about 98% of all criminal trials are held in state courts.
Assistance of Counsel
• Sixth Amendment: In all criminal prosecutions, the accused shall
enjoy the right to . . . have the assistance of counsel for his defense.
• This is one of the more specific provisions of the
Constitution, but there is still a potential ambiguity:
– Restricted meaning: the government cannot prohibit the accused
from hiring the assistance of counsel for his defense (as
authoritarian governments often do).
– Expansive meaning: the government is obliged to provide the
accused with the assistance of counsel for his defense (if he
cannot hire a lawyer on his own).
• Federal courts had long interpreted this clause in the
expansive way.
– Federal courts employed public defenders and/or courtappointed lawyers for defendants.
– By the early to mid-twentieth 20th century, most state courts were
doing the same.
– But some were not doing this (especially in the South).
Assistance of Counsel
• Powell v. Alabama (1932) [the “Scottsboro case”]
– SC ruled that the defendants had not received a fair trial
because the state of Alabama had not provided them with the
assistance of counsel.
– This was a capital case, but there was a general expectation that
ruling applied to all felony cases.
• However, this expectation was upset in Betts v. Brady
(1942)
– SC ruled that the assistance of counsel was not essential to a
fair trial in all felony cases.
• Twenty years later, the “activist” Warren court appeared
ready (even anxious) to overrule the Betts v. Brady
precedent.
– The appropriate case reached the SC in 1963.
Gideon v. Wainwright
(1963)
•
•
•
•
•
Gideon was charged with breaking
and entering into a poolroom with
the intent of committing a misdemeanor (a felony under Florida
law).
He asked for, and was denied, the
assistance of counsel in his trial.
He conducted his own defense as
best he could, but he was convicted
and was sent to the penitentiary for
a term of five years.
He appealed through the Florida
courts unsuccessfully.
He filed a petition for a writ of
certiorari from the U.S. Supreme
Court.
Gideon v. Wainwright (cont.)
• The SC granted certiorari and appointed Abe Fortas (a future SC Justice
and Chief Justice nominee) to handle Gideon’s appeal.
• The Court unanimously reversed the Florida courts, thereby overruling
the Betts v. Brady precedent.
• Justice Hugo Black (who dissented in Betts v. Brady) wrote the opinion of
the Court:
We accept Betts v. Brady's assumption, based as it was on our prior cases, that a
provision of the Bill of Rights which is "fundamental and essential to a fair trial" is
made obligatory upon the States by the Fourteenth Amendment. We think the
Court in Betts was wrong, however, in concluding that the Sixth Amendment's
guarantee of counsel is not one of these fundamental rights. Ten years before
Betts v. Brady, this Court, after full consideration of all the historical data
examined in Betts, had unequivocally declared that "the right to aid of counsel is
of this fundamental character." Powell v. Alabama (1932). While the Court at the
close of its Powell opinion did by its language, as this Court frequently does, limit
its holding to the particular facts and circumstances of that case, its conclusions
about the fundamental nature of the right to counsel are unmistakable....
Assistance of Counsel (cont.)
• Gideon got a new trial with competent counsel and was
acquitted.
• Escobedo v. Illinois (1964): the right to counsel applies
at the stage of police interrogation, prior to the trial itself.
• Miranda v. Arizona (1966): suspects must be informed of
their right to counsel (and other rights) before police
interrogation, i.e.,
– suspects must be read their “Miranda rights.”