Part One: Barron, Gitlow, and the Incorporation Doctrine.


Having read the Barron case, you now know that Barron implicitly argued that the individual rights guaranteed in the Bill of Rights should protect one from the action of the state governments as well as from action of the federal government. (For the purpose of American constitutional law analysis, American law is divided into two categories: federal law and state law. State law includes state constitutions, statutes, regulations, and case law as well as the laws and regulations of local entities such as cities, counties, townships and so on.) The Court rejected that argument.


More specifically, Barron argued that the Just Compensation Clause of the Fifth Amendment protected him from the economic loss he suffered as a result of the action of the city of Baltimore. He argued that the city owed him money because his “private property [was] taken for public use” by Baltimore “without just compensation.” Such cases are called “takings” cases and occur quite frequently in American law, and the Just Compensation Clause of the Fifth Amendment is often called the Takings Clause.


Here was an opportunity for the Court to further restrict state governments, but the Court did not take it. Marshall was on firm historical ground when he held that the Bill of Rights was intended to limit only the national government, not the state governments. Indeed, a strong argument can be made that the Constitution would not have been ratified had Madison and other supporters of the 1787 Constitution not agreed to the demand of several states to provide a federal Bill of Rights, which Congress promptly did in 1789. It is difficult to see how Marshall could have held that the Bill of Rights applied to the states without directly contradicting the universal understanding of the reasons for, and the scope of, the first eight amendments. So this decision was not ground-breaking. It did not expand national power at the expense of state power. But it is hard to call Barron a victory for states rights or federalism either, for there was simply no great national controversy here to be resolved one way or the other.


So the law for almost the next hundred years was that the Bill of Rights does not apply directly to the states, and technically that is still the law today. But in the aftermath of the Civil War, the country ratified the Fourteenth Amendment (1868), which included a Due Process Clause in its first section. The entire first section of the Amendment represented the ratification of a potentially powerful nationalist principle. The Privileges and Immunities Clause, the Due Process Clause, and the Equal Protection Clause of the second sentence, which you should take a look at right now, did not directly enhance the power of the federal government so much as restrict the powers of the state governments. The potential was not realized immediately, however.


To be sure, soon after the ratification of the Amendment, litigants began to argue that the rights protected in the Bill of Rights protected them from state action as well as national action. The argument was that the “liberty” protected by the Fourteenth Amendment Due Process Clause from state action included the “liberties” protected by the Bill of Rights. The Supreme Court consistently rejected that argument in cases such as Hurtado v. California (1884), Maxwell v. Dow (1900), and Twining v. New Jersey (1908).


The Court in fact did use the Due Process Clause to strike down state actions that violated individual liberty. In several cases involving the fairness of criminal trials, such as Hebert v. Louisiana (1926), Powell v. Alabama (1932), also known as the “Scottsboro” or “Scottsboro Boys” case, and as late as 1936 in Brown v. Mississippi, the court held that criminal defendants were deprived of their liberty without due process by being convicted on the basis of coerced confessions or without having the benefit of legal counsel. The Court did not condemn these practices on the grounds that they were violations of rights guaranteed by the federal Bill of Rights, namely the Fifth and Sixth Amendments. They were condemned because they violated the justices’ understanding of “due process.” If these prosecutions had been in federal court, the practices would probably have been struck down as violations of the Fifth and Sixth Amendments, but these cases were prosecutions of state crimes in state courts.


To repeat: what is significant here is that during this period of time the Court struck down some state court convictions not because the criminal procedures represented violations of the defendants’ Fifth or Sixth Amendment rights but because these practices simply violated the defendants’ right to due process of law under the Fourteenth Amendment. Some have argued that the Court was relying on theories of natural law or traditional common law rights as the basic standard of due process. Regardless of the ultimate theory, the Court was not relying on the principle that the Fourteenth Amendment Due Process Clause referred to the Bill of Rights. The federal Bill of Rights did not apply to the states. Barron was still alive.