CHAPTER 1

Introduction to Individual Rights

§1.1 INTRODUCTION AND OVERVIEW

In one sense, the entire body of the Constitution is designed to protect individual rights. In fact, many of the Framers believed that the political structure created by the Constitution was the primary and essential vehicle through which to protect the liberty of the people. Such structural devices as the separation of powers, checks and balances, bicameralism, enumeration of powers, and federalism, among others, were thought to provide a substantial bulwark against governmental tyranny. Alexander Hamilton went further and argued that a detailed bill of rights would be affirmatively dangerous in that it “would contain various exceptions to powers which are not granted; and, on this very account, would afford a colorable pretext to claim more than were granted.” The Federalist No. 84, at 513 (Clinton Rossiter ed., 1961).

The text of the original Constitution reflects this structural bias by including only a few specific protections for what we now commonly consider individual rights. See, e.g., Art. I, §9, cls. 2 & 3 (privilege of the writ of habeas corpus, proscription against bills of attainder and ex post facto laws); Art. III, §2, cl. 3 (right to trial by jury in criminal cases). Yet Hamilton’s confidence in political structure was not universally shared. The absence of a bill of rights was perceived by many as a major flaw in the proposed Constitution, and a number of states premised their ratification of it on a recommendation that the Constitution be amended to include such a statement of rights. See, e.g., 3 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention in Philadelphia in 1787, at 657-661 (proposed amendments by Virginia). Two states, North Carolina and Rhode Island, did not ratify the Constitution until a proposed Bill of Rights had been approved by Congress and submitted to the states for ratification.

In response to these concerns and others, James Madison introduced a series of proposed amendments to the Constitution during the first session of Congress. The Bill of Rights, which was approved by Congress in 1789 and ratified by the states in 1791, was a direct product of Madison’s proposals. It includes ten amendments to the Constitution, nine of which address individual rights; the tenth reiterates the limited nature of the government created by the Constitution. In practical effect, the Bill of Rights limits the power of the federal government to transgress the rights described therein. In other words, the rights enumerated in the Bill of Rights act as a trump on the exercise of federal power.

The Supreme Court held early on that the Bill of Rights limits only the authority of the national government and not that of the states. Barron v. Mayor & City Council of Baltimore, 32 U.S. (7 Pet.) 243 (1833). Thus, although the body of the Constitution contains a few specific individual rights limitations on state authority—e.g., the Privileges and Immunities Clause of Article IV and the Contracts Clause of Article I, §10—by and large the protection of individual rights against state encroachment was to be found, if at all, in the respective constitutions of the several states. At least, that was the case throughout much of the nineteenth century.

The adoption of the Fourteenth Amendment in 1868, however, radically changed both the Constitution’s and the national government’s role in the protection of civil rights against state interference, essentially establishing federal supremacy within this realm of civil rights. As we will see below, through a process of incorporation the Fourteenth Amendment became the constitutional vehicle through which courts now apply most provisions of the Bill of Rights to the states. In addition, the Equal Protection Clause of the Fourteenth Amendment eventually came to operate as a powerful and judicially enforceable principle of equality. Finally, the Fourteenth Amendment vested Congress with a broad authority to enforce civil rights against state encroachment. Thus, with the adoption of the Fourteenth Amendment, accompanied by subsequent judicial and congressional interpretations, the Constitution now provides substantial protection against both federal and state encroachments on individual liberty.