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.
Showing posts with label The Bill of Rights. Show all posts
Showing posts with label The Bill of Rights. Show all posts
The Bill of Rights
"Bills of Rights are for the most part reactions against evils of the past rather than promises for the future." Many of our revolutionary forefathers in the new nation could recall from bitter personal experience the memory of civil rights recently denied them. Moreover, they could review the record of struggles over such rights scattered through centuries of English governmental practice. Yet the framers of the Constitution appear to have given little thought to a bill of rights. Late in the convention it was, however, suggested that a bill of rights "would give great quiet to the people," but a motion to appoint a committee to prepare such a bill was defeated on the grounds that it was unnecessary and impracticable. "Who," Pennsylvania's delegate, James Wilson, once wanted to know, "will be bold enough to undertake to enumerate all the rights of the people?" It was no doubt pointed out at the Convention that scattered clauses already included in the Constitution safeguarded certain individual liberties.
Subsequently, in the Federalist, Alexander Hamilton continued the discussion in a vein approaching sophistry. He pointed out that the Constitution was not a reservation of rights in a compact with a prince but was a sovereign act of "WE, THE PEOPLE," done on purpose to "secure the blessings of liberty to ourselves and our posterity." This, Hamilton maintained, was a "better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government."
Nevertheless, at the insistence of certain of the ratifying states, the first Congress under the Constitution submitted twelve amendments to the states. Ten of these were ratified and thus incorporated into the Constitution. The first eight are commonly called the Bill of Rights. They were based, whether taken in the historical or the rhetorical context, upon the attitude that government was the enemy of freedom. It was against government and government alone that these safeguards were interposed. Only the central government was limited thereby. This is manifest in the First Amendment by the inclusion of the word "Congress." Although the remaining amendments composing the Bill of Rights are rendered less specific by the omission of this word, there is little reason to doubt the historical evidence that their framers intended that they be interposed just as exclusively against usurpation of traditional liberties by the Congress alone. The omission did make it possible to argue that these guarantees were restrictions on states as well as on the central government, but Chief Justice John Marshall was enabled to put an end to the controversy for a time by an opportunity presented in the last decision he handed down. Referring to the Bill of Rights in the case of Barron v. Baltimore in 1833 he said: "These amendments contain no expression indicating an intention to apply them to state governments. This court cannot so apply them."
Thereafter, for a century, in the case of religion at least, "Congress had little opportunity and less inclination to violate the First Amendment, and what the states did by way of dealing with religious matters was their own business so far as the federal Constitution was concerned." Thus there were few Supreme Court decisions dealing with religion or bearing religious connotations until after World War I. The "Mormon cases" in the last quarter of the nineteenth century afford an exception. In one of these, Reynolds v. United States, the Court held that the religious liberty guaranteed by the First Amendment does not include the right to commit immoral or criminal acts, i.e., polygamy, even though such acts are sanctioned by religious doctrine.
Subsequently, in the Federalist, Alexander Hamilton continued the discussion in a vein approaching sophistry. He pointed out that the Constitution was not a reservation of rights in a compact with a prince but was a sovereign act of "WE, THE PEOPLE," done on purpose to "secure the blessings of liberty to ourselves and our posterity." This, Hamilton maintained, was a "better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government."
Nevertheless, at the insistence of certain of the ratifying states, the first Congress under the Constitution submitted twelve amendments to the states. Ten of these were ratified and thus incorporated into the Constitution. The first eight are commonly called the Bill of Rights. They were based, whether taken in the historical or the rhetorical context, upon the attitude that government was the enemy of freedom. It was against government and government alone that these safeguards were interposed. Only the central government was limited thereby. This is manifest in the First Amendment by the inclusion of the word "Congress." Although the remaining amendments composing the Bill of Rights are rendered less specific by the omission of this word, there is little reason to doubt the historical evidence that their framers intended that they be interposed just as exclusively against usurpation of traditional liberties by the Congress alone. The omission did make it possible to argue that these guarantees were restrictions on states as well as on the central government, but Chief Justice John Marshall was enabled to put an end to the controversy for a time by an opportunity presented in the last decision he handed down. Referring to the Bill of Rights in the case of Barron v. Baltimore in 1833 he said: "These amendments contain no expression indicating an intention to apply them to state governments. This court cannot so apply them."
Thereafter, for a century, in the case of religion at least, "Congress had little opportunity and less inclination to violate the First Amendment, and what the states did by way of dealing with religious matters was their own business so far as the federal Constitution was concerned." Thus there were few Supreme Court decisions dealing with religion or bearing religious connotations until after World War I. The "Mormon cases" in the last quarter of the nineteenth century afford an exception. In one of these, Reynolds v. United States, the Court held that the religious liberty guaranteed by the First Amendment does not include the right to commit immoral or criminal acts, i.e., polygamy, even though such acts are sanctioned by religious doctrine.
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