of Rights should be applied to the states as well.
Why Is a Bill of Rights Valuable?
Recall from Chapter 2 that we came very close to not having any Bill of Rights in the Constitution at all. The Federalists had argued that the Constitution itself was a bill of rights, that individual rights were already protected by many of the state constitutions, and that to list the powers that the national government did not have was dangerous, as it implied that it did have every other power (see The Big Picture: What the Bill of Rights Means to You).
To some extent they were correct in calling the Constitution a bill of rights in itself. Protection of some very specific rights is contained in the text of the document. The national government may not suspend writs of habeas corpus, which means that it cannot fail to bring prisoners, at their request, before a judge and inform the court why they are being held and what evidence exists against them. This provision protects people from being imprisoned solely for political reasons. Both the national and the state governments are forbidden to pass bills of attainder, which are laws that single out a person or group as guilty and impose punishment without trial. Neither can they pass ex post facto laws, which are laws that make an action a crime after the fact, even though it was legal when carried out. States may not impair or negate the obligation of contracts; here the founders obviously had in mind the failings of the Articles of Confederation. And the citizens of each state are entitled to “the privileges and immunities of the several states,” which prevents any state from discriminating against citizens of other states. This provision protects a nonresident’s right to travel freely, conduct business, and have access to state courts while visiting another state.9 Of course, nonresidents are discriminated against when they have to pay a higher nonresident tuition to attend a state college or university, but the Supreme Court has ruled that this type of “discrimination” is not a violation of the privileges and immunities clause.
habeas corpus the right of an accused person to be brought before a judge and informed of the charges and evidence against him or her
bills of attainder laws under which specific persons or groups are detained and sentenced without trial
ex post facto laws laws that criminalize an action after it occurs
THE BIG PICTURE: What the Bill of Rights Means to You
Some Federalists, however, including James Madison, came to agree with such Anti-Federalists as Thomas Jefferson, who wrote, “A bill of rights is what the people are entitled to against every government on earth.”10 Even though, as the Federalists argued, the national government was limited in principle by popular sovereignty (the concept that ultimate authority rests with the people), it could not hurt to limit it in practice as well. A specific list of the rights held by the people would give the judiciary a more effective check on the other branches.
Applying the Bill of Rights to the States
Most of the limitations on government action in the Bill of Rights are directed toward Congress. “Congress shall make no law . . . ,” begins the First Amendment. Until about the turn of the twentieth century, the Supreme Court clearly stipulated that the Bill of Rights applied only to the national government and not to the states.11
Not until the passage of the Fourteenth Amendment in 1868 did the Supreme Court have a tool to require that states protect their citizens’ basic liberties. That post–Civil War amendment was designed specifically to force southern states to extend the rights of citizenship to African Americans, but its wording left it open to other interpretations. The amendment says, in part,
No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of the law; nor deny to any person within its jurisdiction the equal protection of the laws.
In 1897 the Supreme Court tentatively began the process of selective nationalization, or incorporation, of most (but not all) of the protections of the Bill of Rights into the states’ Fourteenth Amendment obligations to guarantee their citizens due process of the law.12 But it was not until the case of Gitlow v. New York (1925) that the Court reversed almost a century of ruling by assuming that some rights are so fundamental that they deserve protection by the states as well as the federal government.13 This was a clear shift of power from the states to the national government to determine what rights states had to protect, a shift that came as it so often does at the hands of the Supreme Court. But it did not at first mean that all rights necessarily qualified for incorporation; the Court had to consider each right on a case-by-case basis to see how fundamental it was. Over the years, almost all the rights in the first ten amendments have been incorporated (see Table 4.1).
incorporation the Supreme Court action making the protections of the Bill of Rights applicable to the states
Keep in mind that since incorporation is a matter of interpretation rather than an absolute constitutional principle, it is a judicial creation. Like all other judicial creations, the process of incorporation is subject to reversal if the justices change their minds or if the composition of the Court changes, and it is possible that such a reversal may currently be under way as today’s more conservative Court narrows its understanding of the rights that states must protect.
Table 4.1
In Your Own Words
Explain how the Bill of Rights relates to the federal government and to the states.
Freedom of Religion: Limiting Congress to protect both church and state, and the individual’s right to believe
The First Amendment reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” These are the “democratic freedoms,” the liberties that the founders believed to be so necessary to ensuring a free and unfettered people that they crammed them all into the very first of the amendments. For all that, none of these liberties has escaped controversy, and none has been interpreted by the Supreme Court to be absolute or unlimited.
Why Is Religious Freedom Valuable?
The briefest look around the world tells us what happens when politics and religion are allowed to mix. When it comes to conflicts over religion, over our fundamental beliefs about the world and the way life should be lived, the stakes are enormous. Passions run deep, and compromise is difficult. In the United States, where a majority of people are religious, religious battles tend to take place in the courts, under the guidelines set out by the First Amendment.
