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.