Civil Liberties and the Bill of Rights

The Bill of Rights

The Bill of Rights is the collective name for the first ten amendments to the US Constitution and they guarantee certain liberties.

Learning Objectives

Explain how the Bill of Rights is used to protect natural rights of liberty and property.

Key Takeaways

Key Points

  • The Bill of Rights was introduced by James Madison to the 1st US Congress as a series of legislative articles. Without a Bill of Rights, the Constitution may not have been ratified.
  • Originally, the Bill of Rights implicitly and legally protected only white men, excluding American Indians, people considered to be “black” (now described as African Americans), and women.
  • The Bill of Rights originally only applied to the federal government, but has since been expanded to apply to the states as well.
  • The Bill of Rights includes protections such as freedom of the press, speech, religion, and assembly; the right to due process and fair trials; the right to personal property and other rights.

Key Terms

  • Bill of Rights: The collective name for the first ten amendments to the United States Constitution.
  • amendment: An addition and/or alteration to the Constitution.
  • Fourteenth Amendment: An amendment to the US Constitution containing a clause that has been used to make most of the Bill of Rights applicable to the states, as well as to recognize substantive and procedural rights.

The Bill of Rights

The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government’s power in judicial and other proceedings, and reserve some powers to the states and the public. While the amendments originally applied only to the federal government, most of their provisions have since been held to apply to the states by way of the Fourteenth Amendment.

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The Bill of Rights of the United States of American: The United States Bill of Rights, which are the first 10 amendments to the US Constitution, and the core of American civil liberties.

History of the Bill of Rights

The Constitution may never have been ratified if a bill of rights had not been added. Most state constitutions adopted during the Revolution had included a clear declaration of the rights of all people, and most Americans believed that no constitution could be considered complete without such a declaration.

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Signing the Constitution: This painting depicts the signing of the US Constitution. Without the addition of the Bill of Rights, it is unlikely that the Constitution would have been ratified.

The amendments that would become the Bill of Rights were introduced by James Madison as a series of legislative articles. They were adopted by the House of Representatives on August 21, 1789, and came into effect as Constitutional Amendments on December 15, 1791, through the process of ratification by three-fourths of the States.

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Portrait of James Madison: James Madison, “Father of the Constitution” and first author of the Bill of Rights

Congress passed twelve amendments, yet only ten were originally passed by the states. One of the two rejected amendments dealt with the size of the House of Representatives, and the other rejected amendment provided that Congress could not change the salaries of its members until after an election of representatives had been held (it was ratified 202 years later, becoming the 27th Amendment).

Original Exclusions from the Bill of Rights

The Bill of Rights implicitly and legally only protected white land-owning men, excluding American Indians, people considered to be “black” (now described as African Americans), and women. These exclusions were not explicit in the Bill of Right’s text, but were well understood and applied. Gradually, these exclusions were lifted by subsequent interpretations or amendments, so in contemporary times, the Bill of Rights protects all classes of people.

Protected Rights

  1. The First Amendment protects freedom of religion, speech, press, assembly and petition.
  2. The Second Amendment protects the right of Americans to bear arms.
  3. The Third Amendment prevents the government from quartering (housing) soldiers in civilian’s homes during peace time without the consent of the civilian.
  4. The Fourth Amendment provides protection from unreasonable search and seizure.
  5. The Fifth Amendment establishes rights related to due process, double jeopardy, self-incrimination, and eminent domain.
  6. The Sixth Amendment sets out rights of the accused of a crime: a trial by jury, a speedy trial, a public trial, the right to face the accusers, and the right to counsel.
  7. The Seventh Amendment protects the right to a trial by jury for civil trials.
  8. The Eighth Amendment prohibits excessive bail and cruel and unusual punishment.
  9. The Ninth Amendment protects rights not specifically enumerated in the Constitution. Some people feared that the listing of some rights in the Bill of Rights would be interpreted to mean that other rights not listed were not protected. This amendment was adopted to prevent such a misinterpretation.
  10. The Tenth Amendment confirms that the states or the people retain all powers not given to the national government. This amendment was adopted to reassure people that the national government would not swallow up the states.

Nationalizing the Bill of Rights

The Bill of Rights were included into state laws through selective incorporation, rather than through full incorporation or nationalization.

Learning Objectives

Compare and contrast the difference between nationalization and selective incorporation of the Bill of Rights.

Key Takeaways

Key Points

  • The Bill of Rights were gradually incorporated into state law, through the Due Process Clause of the Fourteenth Amendment.
  • There were two opposing viewpoints that debated how the Bill of Rights should be incorporated at the state level. One argued for total incorporation, or nationalization, of the first eight amendments. Others argued for gradual and selective incorporation.
  • Justice Hugo Black argued for the nationalization of the Bill of Rights, but the Supreme Court eventually adopted a practice of selective incorporation.

Key Terms

  • incorporation doctrine: The process by which American courts have applied portions of the US Bill of Rights to the states, using the Due Process Clause of the Fourteenth Amendment.
  • Fourteenth Amendment: An amendment to the US Constitution containing a clause that has been used to make most of the Bill of Rights applicable to the states, as well as to recognize substantive and procedural rights.
  • Bill of Rights: The collective name for the first ten amendments to the United States Constitution.
  • selective incorporation: the process by which American courts have applied certain portions of the U.S. Bill of Rights to the states

Incorporating the Bill of Rights

The incorporation of the Bill of Rights (also called the incorporation doctrine ) is the process by which American courts have applied portions of the United States’ Bill of Rights to the states. According to the doctrine of incorporation, the Due Process Clause of the Fourteenth Amendment applies the Bill of Rights to the states.

Prior to the ratification of the Fourteenth Amendment and the development of the incorporation doctrine, the Supreme Court held in Barron v. Baltimore (1833) that the Bill of Rights applied only to the federal government, not to any state governments. However, beginning in the 1920s, a series of United States Supreme Court decisions interpreted the Fourteenth Amendment to “incorporate” most portions of the Bill of Rights, making these portions, for the first time, enforceable against the state governments.

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14th Amendment of the United States Constitution: The Fourteenth Amendment, depicted here, allowed for the incorporation of the First Amendment against the states.

Nationalization Versus Selective Incorporation

After the Fourteenth Amendment was passed, the Supreme Court debated how to incorporate the Bill of Rights into state legislation. Some argued that the Bill of Rights should be fully incorporated. This is referred to as “total” incorporation, or the “nationalization” of the Bill of Rights. On the other hand, some believed that incorporation should be selective, in that only the rights deemed fundamental (like the rights protected under the First Amendment) should be applied to the states, and it should be a gradual process. The Supreme Court eventually pursued selective incorporation.

Hugo Black: A Champion for Nationalization

Even though the Supreme Court decided on selective incorporation, there were some who advocated for a total incorporation or nationalization of the Bill of Rights. Justice Hugo Black championed this view. Black called for the nationalization of the first eight amendments of the Bill of Rights (Amendments 9 and 10 being patently connected to the powers of the federal government alone), and his most famous expression of this belief is found in his dissenting opinion in the Supreme Court case, Adamson v. California (1947).

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Justice Hugo Black: Supreme Court Justice Hugo Black is noted for the complete nationalization of the Bill of Rights.

Incorporation Doctrine

The incorporation of the Bill of Rights is the process by which American courts have applied portions of the Bill of Rights to the states.

Learning Objectives

Indicate how the Bill of Rights was incorporated by the the Federal government in the States

Key Takeaways

Key Points

  • Prior to the 1890s, the Bill of Rights was held only to apply to the federal government, which was a principle solidified even further by a Supreme Court case in 1833 (Barron v. Baltimore).
  • The Fourteenth Amendment ‘s Due Process Clause has been used to apply portions of the Bill of Rights to the state through selective incorporation. This amendment is cited in US litigation more than any other amendment.
  • By the last half of the 20th century, nearly all of the first 8 amendments have been incorporated into state law (except the 3rd Amendment, and certain parts of the 5th, 7th, and 8th). The 9th and 10th Amendments apply to the federal government, and so have not been incorporated.
  • Incorporation of the Bill of Rights into state law began with the case Gitlow v. New York (1925), in which the Supreme Court upheld that states must respect freedom of speech.

Key Terms

  • Fourteenth Amendment: An amendment to the US Constitution containing a clause that has been used to make most of the Bill of Rights applicable to the states, as well as to recognize substantive and procedural rights.
  • due process: The limits of laws and legal proceedings, so as to ensure a person fairness, justice, and liberty.
  • incorporation doctrine: The process by which American courts have applied portions of the US Bill of Rights to the states, using the Due Process Clause of the Fourteenth Amendment.

What is the Incorporation Doctrine ?

As described, the incorporation of the Bill of Rights is the process by which American courts have applied portions of the U.S. Bill of Rights to the states, by virtue of the due process clause of the Fourteenth Amendment of the Constitution.

The Fourteenth Amendment and Moving Towards Incorporation

In Barron v. Baltimore (1833), the Supreme Court declared that the Bill of Rights applied to the federal government, and not to the states. Some argue that the intention of the creator of the Fourteenth Amendment was to overturn this precedent.

The Fourteenth Amendment to the Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments. Its Due Process Clause prohibits state and local governments from depriving persons of life, liberty, or property without certain steps being taken to ensure fairness. This clause has been used to make most of the Bill of Rights applicable to the states, as well as to recognize substantive and procedural rights.

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14th Amendment of the United States Constitution: The Fourteenth Amendment, depicted here, allowed for the incorporation of the First Amendment against the states.

The first instance of incorporation include the case Chicago, Burlington and Quincy Railroad v. City of Chicago (1897), in which the Supreme Court required just compensation for property appropriated by state or local authorities (so this was an application of the Fifth Amendment in the Bill of Rights). More commonly, it is argued that incorporation began in the case Gitlow v. New York (1925), in which the Court expressly held that States were bound to protect freedom of speech. Since that time, the Court has steadily incorporated most of the significant provisions of the Bill of Rights.

Selective Incorporation

In Adamson v. California (1947), Supreme Court Justice Hugo Black argued in his dissent that the Supreme Court should pursue nationalization of the Bill of Rights. Despite his opinion, in the following twenty-five years, the Supreme Court employed a doctrine of selective incorporation that succeeded in extending to the States almost of all of the protections in the Bill of Rights, as well as other, unenumerated rights. The Fourteenth Amendment has vastly expanded civil rights protections and is cited in more litigation than any other amendment to the U.S. Constitution.

Which Amendments Have Been Incorporated?

By the latter half of the 20th century, nearly all of the rights in the Bill of Rights had been applied to the states, under the incorporation doctrine.

All of the provisions of Amendment I and Amendment II have been incorporated against the state, while the Third Amendment has not yet been incorporated (the Third Amendment refers to the prohibition on quartering of soldiers in civilian homes).

Amendment IV, unreasonable search and seizure, has been incorporated against the states by the Supreme Court’s decision in Wolf v. Colorado (1949). The exclusion of unlawfully seized evidence has been incorporated against the states in Mapp v. Ohio (1961).

Amendment V, the right to indictment by a grand jury, has been held not to be incorporated against the states, but protection against double jeopardy and protection against self-incrimination have been incorporated against the states in Malloy v. Hogan (1964).

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Incorporating Amendment V: Here, a US law enforcement official reads an arrested person his rights. Amendment V, the right to due process, has been incorporated against the states.

Amendment VI, the rights to a speedy, public, and impartial trial have been incorporated against the states, as has the right to counsel in Gideon v. Wainwright (1963).

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Incorporating Amendment VI: Amendment VI, the right to a trial by a jury and the right to counsel, was incorporated against the states in the case Gideon v. Wainwright (1963). Here, this right is exercised as an attorney asks questions during jury selection.

Amendment VII, right to a jury trial in civil cases, has been held not to be applicable to the states.

Amendment VIII, the right to jury trial in civil cases has been held not to be incorporated against the states, but protection against “cruel and unusual punishments” has been incorporated against the states.

Amendments IX and X have not been incorporated against the states, as they apply expressly to the federal government alone.