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Running head: AMERICAN CONSTITUTION 1

Bill of Rights

Name

Institution

AMERICAN CONSTITUTION 2

Bill of Rights

The debate on whether the Fourteenth Amendment made it applicable against the states

and all of the safeguards provided in the Bill of Rights has remained one of the most significant

and long-lasting debates involving interpretation of the American constitution. After the

declaration of independence, the Founding Fathers turned towards the composition of the federal

canon. Initially, the Bill of Rights had no importance. However, efforts by constitution

supporters such as Madison James backed the official inclusion of the Bill of Rights into the

United States canon. However, the Supreme Court has not followed the view of total integration

of the Bill of Rights to the state governments but in its place the Court has only incorporated

particular portions of it via the Fourteenth Amendment.

The bill of Rights refers to a collective name given to the first ten amendments to the US

Constitution (Mazzone, 2007). The main aim of these limitations is the protection of the natural

rights of property and liberty. These amendments guarantee several personal freedoms while

limiting the power of the federal government in judicial and extra proceedings (Mazzone, 2007).

For instance, freedom of speech is existent because free speech is a natural and God-given right

provided to humans. Besides, the Bill of Rights reserves certain powers to the public and the

state administrations. While these amendments solely applied to the federal government, most of

the provisions have since spread and now apply to the states.

The act of ratifying the constitution may never have happened without the addition of the

Bill of Rights. Constitutions from most states, especially those adopted during the Revolution

consisted of a declaration of the rights of all individuals, and as a result, most Americans

believed that the constitution would be incomplete without this declaration. Instead of

nationalisation or full incorporation, the inclusion of the Bill of Rights into laws of different state

governments was achieved through selective incorporation (Solum, 2009). Also known as the

incorporation doctrine, the Bill of Rights assimilation refers to the process adopted by American

courts in applying portions of the country’s Bill of Rights to state governments. According to the

incorporation doctrine, the Fourteenth Amendment’s due process clause incorporates the Bill of

Rights to the states.

The Fourteenth Amendment to the American canon granted nationality to all individuals

born or naturalised in the U.S which included former slaves (Siegan, 2018). As part of the three

AMERICAN CONSTITUTION 3

amendments (including amendments 13 and 15), the Fourteenth amendment was passed in 1866

June, 13 to abolish slavery by establishing civil and legal rights for African Americans,

especially in the Southern states (Siegan, 2018). Over the years, this amendment would become

the heart of many landmark Supreme Court rulings. Part of the amendment contained the Due

Process Clause which declared that states had no power to repudiate persons “life, liberty, or

property, without the due process of the law” (Siegan, 2018). Also, the Equal Protection Clause

reported that states could not deny individuals within their jurisdictions the equal protection of

the laws.

Concerning the due process and the equal protection clauses, the former has provided

most protections contained in the Bill of Rights which applies to state administrations while the

latter has helped in preventing and ending discrimination from the government based on an

individual’s gender or race (Karst, 2007). Besides, it has protected against discrimination from

other people’s groups such as illegitimate children (born outside marriage) and non-citizens

(aliens).

Before the ratification of the Fourteenth Amendment in 1868 and the development of the

doctrine of incorporation, the Supreme Court alleged that the Bill of Rights was only functional

to the national administration, and not any state government. However, during the 1930s period,

a chain of Supreme Court verdicts in the U.S interpreted the Fourteenth Amendment to

incorporate most portions of the Bill of Rights. For the first time, these portions became

enforceable against state administrations. One such instance is the Supreme Court ruling in Palko

v. Connecticut (1937) case (Lash, 2009). During this case, Palko, the appellant, claimed that the

state of Connecticut dishonored the Double Jeopardy Clause of the 5

Amendment after he was

tried twice for murder.

According to the Fifth Amendment of the American canon, no individual, “shall…be

twice put in jeopardy of life and limb” for similar crimes (Vile, 2015). Despite this clause

preventing the federal government from conducting a dual trial or punishment to a single

individual for similar crimes, the final decision made by the Supreme Court asserted Palko’s

subsequent murder conviction. The court, through Justice Benjamin N. Cardozo, argued that the

Bill of Rights did not inevitably apply to state administrations (Lash, 2009). However, after

several decades, the Supreme Court overturned the decision and applied a greater number of the

AMERICAN CONSTITUTION 4

Bill of Rights to state governments. In 1947, Justice Hugo Black during a Supreme Court case

(Adamson v. California) argued that the Supreme Court needed to pursue nationalisation of the

Bill of Rights.

Despite Justice Hugo’s opinion, the Court still employed a doctrine of selective

incorporation. Under this incorporation doctrine, the latter part of the 20

century has witnessed

the application of ‘nearly' all the civil rights enclosed in the Bill of Rights. Some of the

amendments’ provisions incorporated against state governments following Palko’s conviction

include the Fourth Amendment (rights against unreasonable search and exclusion of evidence

seized unlawfully) Fifth Amendment (rights against double jeopardy and self-incrimination) and

the Sixth Amendment (rights to an impartial, public, and speedy trial).

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References

Karst, K. L. (2007). The Liberties of Equal Citizens: Groups and the Due Process Clause. UCLA

L. Rev., 55, 99.

Lash, K. T. (2009). Beyond Incorporation. J. Contemp. Legal Issues, 18, 447.

Mazzone, J. (2007). The Bill of Rights in the Early State Courts. Minn. L. Rev., 92, 1.

Siegan, B. (2018). Property Rights: From Magna Carta to the Fourteenth Amendment.

Routledge.

Solum, L. B. (2009). Incorporation and Originalist Theory. J. Contemp. Legal Issues, 18, 409.

Vile, J. R. (2015). A companion to the United States Constitution and its amendments. ABC-

CLIO.

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