DUE PROCESS OF LAW

I. THE BILL OF RIGHTS AND THE STATES

A. The Bill of Rights generally: The first ten amendments to the Constitution, all adopted in 1791, are commonly called the Bill of Rights. Their principal purpose is to protect the individual against various sorts of interference by the federal government.

1. Not applicable to the states: The Supreme Court decided fairly early that the guarantees of the Bill of Rights were not directly binding upon state governments. In Barron v. The Mayor and City Council of Baltimore, 32 U.S. (7 Pet.) 243 (1833), an opinion by John Marshall, the Court reasoned that “[h]ad the framers of [the Bill of Rights] Amendments intended them to be limitations on the powers of the state governments, they would have … expressed that intention … in plain and intelligible language.” This conclusion has generally been accepted as being historically justified. See, e.g., N&R, pp. 339-340.

a. Consequence: As a consequence of the Barron holding, however, neither the Supreme Court nor the lower federal courts was able to exercise significant control over the substance of state legislation, or the procedures by which a state law was administered. For instance, in Barron itself, the City of Baltimore (a subdivision of the State of Maryland) ended up being able to divert a stream in a way that ruined plaintiff’s wharf; the “Taking” Clause of the Fifth Amendment was not applicable to a state government. What little control over state government existed was exercised mainly through the Contract Clause of Article I, §10 (discussed infra, p. 437).

B. Enactment of the Civil War Amendments: The relative lack of constitutional restrictions on relations between state governments and individuals was drastically changed by the enactment of the three Civil War Amendments, the Thirteenth, Fourteenth and Fifteenth. Each of these three was enacted for the purpose of barring discrimination by states against individuals, especially blacks.

1. Fourteenth Amendment: Of greatest interest to us here is the Fourteenth Amendment, especially §1. §1 provides, in full, as follows:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

C. Due process of law and “incorporation”: Shortly after the Fourteenth Amendment was enacted, the Supreme Court seems to have implicitly rejected the notion that that Amendment automatically made applicable to the states all of the Bill of Rights guarantees (which had previously been binding solely on the federal government). See Gunther & Sullivan (13th Ed.), p. 431. But exactly what effect the Fourteenth Amendment had on the states’ obligation to honor the Bill of Rights remained quite unsettled until well into this century. Most of the litigation on this issue has involved the criminal procedure aspects of the Bill of Rights.