05 Civil Liberties and the Fourteenth Amendment

From Federal Limits to State Constraints

The Bill of Rights was originally understood primarily as a set of limits on the federal government. This arrangement reflected constitutional federalism: the national government possessed enumerated powers, while states retained broad authority over criminal law, education, public safety, and local government.

In Barron v. Baltimore (1833), the Supreme Court held that the Bill of Rights did not apply to state governments. A state could therefore regulate speech, criminal procedure, or religious practice without violating the federal Bill of Rights, although a state constitution might provide separate protections.

The Fourteenth Amendment changed this relationship. Its first section placed express limits on state power through three clauses:

• The Privileges or Immunities Clause prohibits a state from abridging the privileges or immunities of citizens of the United States.

• The Due Process Clause prohibits a state from depriving any person of life, liberty, or property without due process of law.

• The Equal Protection Clause prohibits a state from denying any person within its jurisdiction the equal protection of the laws.

Although the Privileges or Immunities Clause might appear to provide the most direct textual basis for applying federal rights to the states, modern incorporation doctrine developed mainly through the Due Process Clause.

Takeaway: The Fourteenth Amendment transformed the original federal-state relationship by making state governments subject to important national constitutional limits.

Two Dimensions of Due Process

The Due Process Clause has two related but distinct functions.

Procedural due process concerns the fairness of the government’s method. Before depriving a person of a protected liberty or property interest, the government may need to provide notice, a hearing, an impartial decision maker, or an opportunity to present evidence. For example, when the state seeks to terminate an important public benefit, it ordinarily must provide procedures that allow the recipient to contest the proposed termination.

The central question is: Were fair procedures used?

Substantive due process concerns whether the government may impose a particular law or restriction at all. Fair procedures do not cure a law that unjustifiably violates a fundamental liberty. The central question is: Is the government’s infringement of liberty constitutionally permissible?

The Due Process Clause also became the constitutional vehicle for applying many specific Bill of Rights guarantees to the states. Therefore, a Fourteenth Amendment claim may involve a general due-process inquiry, incorporation of a particular right, or both.

Takeaway: Always identify whether the problem concerns the fairness of governmental procedures, the permissibility of the government’s action itself, or an incorporated Bill of Rights protection.

The Development of Selective Incorporation

The Supreme Court first developed incorporation through an inquiry into fundamental fairness. In Palko v. Connecticut (1937), the Court described protected rights as those essential to a scheme of ordered liberty and a fair system of justice. Because the Court did not regard the specific double-jeopardy protection at issue as sufficiently fundamental under that approach, Connecticut could retry Palko for first-degree murder.

The Court later moved toward a more specific, text-centered analysis. Instead of asking only whether a general concept of fairness had been violated, it increasingly asked whether a particular Bill of Rights guarantee was fundamental and therefore enforceable against the states.

In Gitlow v. New York (1925), the Court upheld Gitlow’s conviction under a New York law but recognized that freedom of speech and freedom of the press were fundamental liberties protected by the Fourteenth Amendment’s Due Process Clause from state interference. This distinction is essential: incorporation determines whether a right applies to the states, but it does not automatically determine whether the state has violated that right.

Takeaway: Selective incorporation applies rights individually, and incorporation is separate from the later question of whether the government’s conduct satisfies the governing constitutional test.

How Selective Incorporation Operates

Selective incorporation applies specific Bill of Rights protections to state and local governments when those protections are fundamental to ordered liberty and justice. The Supreme Court has considered guarantees individually rather than declaring the entire Bill of Rights applicable in one decision.

Examples include:

• Speech and press protections, beginning with Gitlow v. New York and later cases.

• Religion protections under the Establishment and Free Exercise Clauses.

• Protection against unreasonable searches and seizures through Wolf v. Colorado and Mapp v. Ohio.

• The privilege against compelled self-incrimination through Malloy v. Hogan.

• The right to counsel through Gideon v. Wainwright.

• The right to confrontation through Pointer v. Texas.

• The right to a jury trial in serious criminal cases through Duncan v. Louisiana.

• Protection against excessive fines through Timbs v. Indiana.

Once incorporated, a right generally has the same constitutional force against the states that it has against the federal government. However, incorporation does not make every related rule or remedy identical. Some protections remain unincorporated, including the Fifth Amendment Grand Jury Clause and the Seventh Amendment civil-jury guarantee.

Takeaway: The key question is not whether the entire Bill of Rights applies to the states, but whether the specific guarantee at issue has been incorporated.

The Modern Fundamental-Rights Test

The modern incorporation method asks whether a specific federal right is fundamental to liberty and justice. Duncan v. Louisiana (1968) illustrates this approach. The Court held that the Sixth Amendment right to a jury trial applies to the states for serious criminal offenses because the jury has an important historical role as a protection against government oppression.

A useful analysis proceeds in four stages:

1. Identify the specific federal right.

2. Examine its historical role and constitutional importance.

3. Decide whether the right is fundamental to liberty and justice.

4. If it is fundamental, apply it to state governments through the Fourteenth Amendment.

The incorporation inquiry does not require state and federal criminal systems to be identical in every detail. States retain flexibility in defining minor offenses and regulating criminal procedure, but they must respect incorporated guarantees that are constitutionally fundamental.

In McDonald v. City of Chicago (2010), the Court held that the Second Amendment right to keep and bear arms applies to the states through the Fourteenth Amendment’s Due Process Clause. The plurality emphasized whether the right was deeply rooted in the nation’s history and traditions and fundamental to the nation’s scheme of ordered liberty. Justice Thomas argued separately that the Privileges or Immunities Clause should provide the textual basis, but that position did not command a majority.

Takeaway: Modern incorporation combines attention to the specific constitutional guarantee with an inquiry into its fundamental status in liberty, justice, history, and tradition.

Practical Effects and Case Analysis

Selective incorporation placed a national constitutional floor beneath many individual liberties. State and local officials became subject to many of the same restraints that already bound federal officials.

For example:

• State police generally must respect Fourth Amendment standards governing searches and seizures.

• State prosecutors must respect the incorporated privilege against compelled self-incrimination.

• State courts must provide appointed counsel to indigent defendants facing serious criminal charges when the Sixth Amendment requires counsel.

• Cities may not impose punishments that violate incorporated Eighth Amendment protections.

This national floor does not eliminate state authority. States remain important policymakers and may regulate areas not controlled by federal constitutional rights, provided their laws and practices comply with applicable constitutional standards.

Several analytical distinctions prevent common errors:

• State action: The challenged conduct must generally be attributable to a state or local government. Purely private conduct ordinarily is not governed by the Fourteenth Amendment merely because it affects another person.

• Incorporation versus violation: Incorporation establishes that a right applies. The government may still prevail under the legal test governing that right.

• Civil liberties versus equal protection: A civil-liberties claim usually alleges interference with a protected freedom, while an equal-protection claim usually alleges unequal treatment of similarly situated people. One law may raise both issues.

• Correct constitutional source: A claim may involve procedural due process, substantive due process, an incorporated Bill of Rights protection, or equal protection. Choosing the correct source is often the first major analytical step.

Takeaway: Incorporation expands constitutional protection, but a complete analysis still requires identifying the government actor, the protected interest, the constitutional source, the applicable test, and possible defenses or remedies.