No State Shall Abridge: The Fourteenth Amendment and the Bill of Rightsby Michael Kent Curtis
“Curtis effectively settles a serious legal debate: whether the framers of the 14th Amendment intended to incorporate the/p>/i>
“The book is carefully organized and well written, and it deals with a question that is still of great importance—what is the relationship of the Bill of Rights to the states.”—Journal of American History
“Curtis effectively settles a serious legal debate: whether the framers of the 14th Amendment intended to incorporate the Bill of Rights guarantees and thereby inhibit state action. Taking on a formidable array of constitutional scholars, . . . he rebuts their argument with vigor and effectiveness, conclusively demonstrating the legitimacy of the incorporation thesis. . . . A bold, forcefully argued, important study.”—Library Journal
“Curtis effectively settles a serious legal debate: whether the framers of the 14th Amendment intended to incorporate the Bill of Rights guarantees and thereby inhibit state action. Taking on a formidable array of constitutional scholars, . . . he rebuts their argument with vigor and effectiveness, conclusively demonstrating the legitimacy of the incorporation thesis. . . . A bold, forcefully argued, important study.” - Library Journal
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No State Shall Abridge
The Fourteenth Amendment and the Bill of Rights
By Michael Kent Curtis
Duke University PressCopyright © 1986 Duke University Press
All rights reserved.
From the Revolution to the Bill of Rights and Beyond
From the Revolution to the Bill of Rights
When the American colonies rebelled against Great Britain, the rebels gave their reasons in the Declaration of Independence: "We hold these truths to be self-evident: that all men are created equal; that they are endowed, by their Creator, with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed." The rhetoric, of course, was more advanced than the reality. Blacks were held as slaves in the colonies, not even all white males would get the vote for another sixty years or so, and all women were disfranchised and deprived of important liberties. Still, rhetoric has a way of shaping reality. By the twentieth century America was closer to the ideals of the Declaration than it was in 1776. The words of the Declaration itself were a factor in bringing about the change.
According to the Declaration, people have unalienable rights to liberty. The ideology of the revolutionary generation shaped the later American Bill of Rights. This revolutionary ideology combined and wove together both the natural rights of man and the historic rights of Englishmen. The colonists emphasized natural rights and historic liberties as a result of their view of government. Government was potentially hostile to human liberty and happiness. Power was essentially aggressive. The Continental Congress in its Address to the Inhabitants of Quebec quoted Marquis Beccaria:
"In every human society ... there is an effort, continually tending to confer on one part the heighth of power and happiness, and to reduce the other to the extreme of weakness and misery. The intent of good laws is to oppose this effort, and to diffuse their influence universally and equally."
Rulers, stimulated by this pernicious "effort," and subjects animated by the just "intent of opposing good laws against it," have occasioned that vast variety of events, that fill the histories of so many nations.
The rebellious colonists dealt with the problem of aggressive political power by several devices: separation of powers, an independent judiciary, the right of people to have a share in their own government by representatives chosen by themselves, and an insistence on the natural and historical rights and liberties of citizens reflected in revolutionary bills of rights of the several states.
By 1787 delegates from the states had drafted a constitution to replace the Articles of Confederation. Juxtaposed to the ideology of the Revolution was the reality of slavery. Although the framers declined to use the word, their constitution contained clauses designed to protect the institution. As Luther Martin, member of the Constitutional Convention from Maryland, put it, the framers had avoided "expressions which might be odious in the ears of Americans, although they were willing to admit into their system the things which the expressions signified."
One of the most significant constitutional advantages extended to slavery was that each slave was counted as three-fifths of a person for purposes of representation in the House of Representatives. In addition, the importation of slaves could not be banned by the federal government until 1808, and this provision could not be amended. Provision was also made for the return of fugitive slaves: "No person held to service or labor in one State under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on the claim of the party to whom such service or labor may be due." In addition to provisions explicitly protecting slavery was the absence of explicit power to remove it. In the Virginia ratifying convention James Madison assured his fellows that the Constitution did not allow interference with slavery in the states.
These concessions to slavery produced some protests. George Mason, delegate from Virginia and a leading advocate of a federal bill of rights, complained that delegates from South Carolina and Georgia were more interested in protecting the right to import slaves than in promoting "the Liberty and Happiness of the people." Luther Martin's criticisms were more fundamental and prophetic. Slavery, Martin insisted, "is inconsistent with the genius of republicanism, and has the tendency to destroy those principles on which it is supported." It habituated people to tryanny and oppression.
Some framers rationalized the compromise with slavery on the assumption that the institution would soon die out. In truth, however, a compromise was made in the interest of the Union. While the framers compromised with slavery, they took steps to prevent its spread to new states. Particularly after the adoption of the Bill of Rights the Constitution reflected the Jekyll-and-Hyde character of the nation. The nation sought simultaneously to protect liberty and slavery.
When the Constitution replaced the Articles of Confederation, proposals to preface the Constitution with a Bill of Rights had been rejected. As a result, George Mason, a delegate to the Constitutional Convention from Virginia, objected to the proposed Constitution: "There is no declaration of rights: and the laws of the general government being paramount to the laws and constitutions of the several states, the declaration of rights, in the separate states, are no security"
Mason's concerns were shared by others, including Thomas Jefferson, then ambassador to France. In December 1787 Jefferson wrote James Madison about his thoughts on the proposed Constitution. After indicating what he liked, Jefferson went on to what he did not like. First among these was "the omission of a bill of rights providing clearly and without aid of sophisms for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by juries in all matters of fact triable by the laws of the land and not by the law of Nations." Jefferson rejected the idea that trial by jury should not be guarantied because some states "have been so incautious as to abandon this mode of trial."
It would have been much more just and wise to have concluded the other way that as most of the states had judiciously preserved this palladium, those who had wandered should be brought back to it, and to have established general right instead of general wrong. Let me add that a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference.
Madison responded to Jefferson that he also favored a bill of rights but had never thought the omission a material defect. First, he thought the rights were reserved by the manner in which federal powers were granted. Second, he thought there was reason to fear that "a positive declaration of some of the most essential rights could not be obtained in the requisite latitude." Third, the jealousy of state governments against the federal government would afford a security. And finally, "because experience proves the inefficacy of a bill of rights on those occasions when its control is most needed. Repeated violations of these parchment barriers have been committed by overbearing majorities in every state."
Writing back to Madison from Paris, Jefferson said Madison had missed an argument in favor of a declaration of rights that had great weight with him, "the legal check which it puts into the hands of the judiciary." Jefferson admitted that experience had often proved the inefficacy of a bill of rights.
But tho it is not absolutely efficacious under all circumstances, it is of great potency always, and rarely inefficacious. A brace the more will often keep up the building which would have fallen with that brace the less. There is a remarkable difference between the characters of the Inconveniencies which attend a Declaration of rights, and those which attend the want of it. The inconveniences of the Declaration are that it may cramp government in its useful exertions. But the evil of this is shortlived, moderate, and reparable. The inconveniencies of the want of a Declaration are permanent, afflicting and irreparable: they are in constant progression from bad to worse.
After the ratification of the Constitution, Madison led the congressional fight for a bill of rights. The amendments Madison first suggested included proposals designed to secure all of the rights that were finally set out in the federal Bill of Rights. In addition, Madison proposed to provide that "no state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases." Although most of Madison's proposals were adopted, many in the very language in which he proposed them, his proposal for these explicit limitations on the power of the states was not.
In Congress Madison made his famous, and ultimately effective, argument in favor of the adoption of a Bill of Rights.
It may be thought that all paper barriers against the power of the community are too weak to be worthy of attention. I am sensible they are not so strong as to satisfy gentlemen of every description who have seen and examined thoroughly the texture of such a defense; yet, as they have a tendency to impress some degree of respect for them, to establish the public opinion in their favor, and rouse the attention of the whole community, it may be one means to control the majority from those acts to which they might be otherwise inclined.
Madison considered and finally rejected the argument that the limited powers of the federal government were a sufficient security for liberty. The general government had a right to pass all laws necessary to collect its revenue, so "may not general warrants be considered necessary for this purpose"? Finally, Madison picked up and elaborated the argument that had been made earlier by Jefferson.
It has been said, that it is unnecessary to load the constitution with this provision, because it was not found effectual in the constitutions of the particular States. It is true, that there are a few particular States in which some of the most valuable articles have not, at one time or another, been violated; but it does not follow but they may have, to a certain degree, a salutary effect against the abuse of power. If they are incorporated into the constitution, independent tribunals of justice will consider themselves in peculiar manner the guardian of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon the rights expressly stipulated for in the constitution by the declaration of rights.
So, in the end, the Bill of Rights was proposed by the Congress and ratified by the states.
The Bill of Rights Goes to Court
Not until 1833, apparently, in the case of Barron v. Baltimore, did the United States Supreme Court consider whether or not rights in the federal Bill of Rights limited the states. Barron contended that the City of Baltimore had diverted certain streams so that sand was deposited around his wharf, making it of little value. As a result, Barron said, his property had been taken for public use without just compensation.
In Barron the Supreme Court might have held: (1) that the rights recognized in the Bill of Rights were basic liberties of the citizen that no government, state or national, had power to deny; (2) the Constitution was the supreme law of the land; and (3) consequently, acts of the states infringing rights in the Bill of Rights were void. As W. W. Crosskey has shown, some commentators and some state courts had read the generally phrased rights in the Bill of Rights in this way before Barron was decided.
The Supreme Court rejected this approach. Chief Justice John Marshall noted that the original Constitution expressly limited the power of the states in certain respects: "In every inhibition intended to act on State power, words are employed which directly express that intent." The application of such clauses to the states, Marshall said, is not "left to construction. It is averred in positive words." If states had been concerned about additional safeguards to liberty needed to prevent encroachments of their own governments, Marshall insisted, they would have amended their own constitutions. "Had Congress engaged in the extraordinary occupation of improving the constitutions of the several States by affording the people additional protection from the exercise of power by their own governments in matters which concern themselves alone, they would have declared this purpose in plainly intelligible language." But, Marshall argued, no such result was intended. The Bill of Rights was adopted because of the fear of abuses of power by the federal government. It simply had no application to the states. Most scholars have concluded that Marshall's reading of the intent of the framers of the Bill of Rights was correct. James Madison had proposed to make only a few Bill of Rights guaranties a limit on the states. That Congress rejected even this proposal seems to indicate that Barron was correctly decided.
Although Chief Justice Marshall had strong nationalist tendencies, the decision in Barron was a vindication of states' rights. Although Marshall had relied on natural law particularly in the protection of property, the decision left the states free to nullify basic rights, including the right to property.
The decision in Barron never mentioned slavery, but it seems unlikely that the issue can have been far from the minds of the Justices. The abolitionist William Lloyd Garrison had launched the Liberator in 1831 just two years before the decision in Barron. Nat Turner's rebellion (a massacre of plantation families by blacks) had left southern whites with a conviction that abolitionist propaganda was incendiary—the seditious spark likely to provoke a slave rebellion.
Barron avoided troubling questions. It promoted the stability of the Union at the expense of liberty. It left southern states free to suppress speech and press on the question of slavery and left them free to deny procedural and substantive rights to blacks. That the decision may be the most reasonable reading of the constitutional text is, of course, only part of the explanation for it.
The next time the Supreme Court considered the matter, also in 1833, the contention that the federal Bill of Rights prohibited state infringements of trial by jury was given short shrift: 'As to the amendments to the Constitution of the United States, they must be put out of the case: since it is now settled that those amendments do not extend to the states."
The Court looked at the application of the Bill of Rights to the states again in 1845, in the case of Permoli v. New Orleans. New Orleans had passed an ordinance making it unlawful to expose anycorpse in any Catholic church. The penalty for violation was a fine of fifty dollars. Permoli, a Roman Catholic priest, had violated the ordinance. In the action against him he contended that the ordinance violated the First Amendment of the United States Constitution, since the corpse was exposed as a part of a Catholic funeral. The Supreme Court rejected the First Amendment argument summarily. "The Constitution," the Court noted, "makes no provision for protecting citizens in their respective States in their religious liberties; this is left to State constitutions and laws; nor is there any inhibition imposed by the Constitution of the United States in this respect on the States." Permoli's case was dismissed.
Although the Supreme Court considered the application of the Bill of Rights to the states settled, others did not. In Nunn v. Georgia, decided in 1846, the Georgia Supreme Court considered an act that prohibited carrying weapons. The Georgia constitution seems to have lacked any protection for the right of bearing arms. At any rate, the Georgia court relied on the Second Amendment to the United States Constitution. First, the Georgia court cited a number of decisions under the constitutions of other states protecting the right to bear arms.
Excerpted from No State Shall Abridge by Michael Kent Curtis. Copyright © 1986 Duke University Press. Excerpted by permission of Duke University Press.
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Meet the Author
Michael Kent Curtis is Professor of Law at Wake Forest University School of Law.
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