The Fourteenth Amendment and the Bill of Rights

Following the Civil War a possibility that the guarantees of the Bill of Rights might be extended to the states by the final sentence of Section One of the Fourteenth Amendment became the subject of bitter controversy. The sentence follows:

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.

Many persons understood this as intending that the "privileges and immunities" mentioned were those specified by the first eight amendments, and that the Supreme Court would hold any state interference with them to be in violation of the Fourteenth Amendment. However, many decades were to elapse before the court was persuaded to this view. For, from the Slaughterhouse cases in 1873 until the present, the Court has resisted making express equation of all the civil liberties in the Bill of Rights with the "privileges and immunities of citizens of the United States." Since the 1930's the number of liberties which have been so equated has been increased by certain decisions. Notable among such decisions are those in "education cases" to be described hereafter.

Likewise, persons who had expected that the clause "nor shall any state deprive any person of life, liberty, or property, without due process of law" would be accepted by the Court as including civil liberties covered in the Bill of Rights were also destined to wait nearly as long. But in this aspect there were more dissenting opinions among the justices than appeared in cases turning upon the "privileges and immunities" clause. In 1923, and again in 1925, in the cases respectively of Meyer v. Nebraska and Pierce v. Society of Sisters the Court began to bring the Bill of Rights under the extended protection of the "due process" clause. Although the trend is only somewhat more complete in the "due process" aspect than in the "privileges and immunities" aspect, the principle of federal defense against invasions of civil rights in general by the states seems now to have become well established. Those of the decisions affecting education included in this chapter and which are dated later than 1922 have contributed to this principle in one or both of the aspects.