Transcription
The first ten amendments to the constitution are called the bill of rights. They were written to ensure that the fundamental rights of all Americans would be protected, protected. But the bill of rights only applied to actions by the federal government. State governments were not obligated to uphold those rights or limited by their restrictions. In fact, until 1833, Massachusetts had a public worship tax, which was used to pay ministers and support Protestant churches in that state.
That tax would be in violation of the first amendment, which says Congress shall make no law respecting an establishment of religion. But the restriction was only on congress, not state governments. Chief justice John Marshall made that clear in a decision he wrote in 1833. The constitution, he said, was ordained and established by the people of The United States for themselves and not for the government of the individual states. In the aftermath of the civil war, southern states passed laws restricting the rights of newly freed slaves.
To counter this, congress proposed the fourteenth amendment. It was ratified in 1868. The first section of the fourteenth amendment grants citizenship to all native born people, including former slaves, and lists three clauses which limit the power of state governments to interfere with the rights of American citizens. The clauses are the privileges and immunity clause, the equal protection clause, and the due process clause. In 1873, the Supreme Court issued the first ruling involving the fourteenth amendment.
It was the slaughterhouse cases, which challenged a Louisiana law granting a monopoly to one business, thereby interfering with the rights of other business owners. Those businessmen claimed that under the privileges and Immunity Clause of the Fourteenth Amendment, their rights were being denied. The court refused to accept that argument. It ruled that the Fourteenth Amendment did not apply because it only concerned privileges and immunities that came with being a citizen of The United States, not the citizen of the state. And the privileges and immunities of American citizenship, the court said, were only those written into the constitution.
For many years, that was how the fourteenth amendment was interpreted. But slowly, there was a change in the court's thinking. In 1925, in the case of Gitlow versus New York, the Supreme Court stated for the first time that freedom of speech and freedom of the press, rights guaranteed by the first amendment, are among the fundamental personal rights and liberties protected by the due process clause of the fourteenth amendment from impairment by the states. Some justices thought this opinion meant that all the rights guaranteed by the bill of rights should be extended to actions of the state. They advocated a policy known as total incorporation, meaning that under the due process clause of the fourteenth amendment, the entire bill of rights automatically became binding on the states.
But the Supreme Court rejected that view and instead adopted a policy known as selective incorporation or the incorporation doctrine. Using selective incorporation, the court has decided over time and case by case which provisions of the bill of rights will extend to the states. In 1937, in the case Palko versus Connecticut, the Supreme Court set out the standard for selective incorporation. The standard, the court said, would be to apply to the states any right so rooted in the traditions and conscience of our people as to be ranked as fundamental. In the nineteen fifties and the nineteen sixties, under the leadership of Chief Justice Earl Warren, the Supreme Court incorporated almost all of the first eight amendments of the Bill of Rights using the due process clause of the fourteenth amendment.
For example, in 1962, in the case Engel versus Vitale, the court ruled that the state sponsored prayer in public schools violated the first amendment protection against the establishment of religion. In 1963, in Gideon versus Wainwright, the court ruled that not providing legal counsel to poor defendants in felony cases violated the sixth amendment right to counsel. In 1966, in Miranda versus Arizona, the court ruled that not notifying suspects of their rights before interrogations violated the fifth amendment. Since then, other rights have been incorporated. In 02/2010, in the case McDonald versus Chicago, the second amendment right to bear arms was extended to the states.
With the exception of the third amendment prohibiting the government from quartering soldiers in private homes, all of the first eight amendments of the bill of rights have been completely or partially incorporated. The exceptions are the fifth amendment right to indictment by a grand jury, the sixth amendment right to a jury selected from residence of a crime location, the seventh amendment right to a jury trial in civil cases, and the eighth amendment prohibition against excessive fines. The prohibition of excessive bail, however, has been incorporated.