6.2: Incorporation or Nationalization of the Bill of Rights

“The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law.”

—Justice Hugo Black ⁽¹⁾

Does the Bill of Rights protect you only against United States government intrusions, or does it protect you against your state and local government as well? Today, the answer would be 'yes'. But this has not always been true, as an example is Barron v. The Mayor of Baltimore (1833). Beginning in 1815, Baltimore began a series of construction and paving projects that involved diverting streams. As it happened, the diverted streams came out into the harbor immediately next to John Barron’s wharf. By 1822, Barron sued Baltimore city and the mayor because the newly diverted streams were causing silt to build up to such a degree that ships were no longer able to access his wharf. Barron’s lawsuit rested on the Fifth Amendment, which says that no one’s property may be seized for public use without due process and just compensation. Since there was neither due process nor any compensation for damage to the economic viability of his property, Barron felt he would win. However, the Supreme Court ruled in favor of Baltimore, saying that the Bill of Rights protects people from actions of the central government, not state and local actions. Further, Barron needed to seek redress from the Maryland state constitution. But, there was no such provision in that document that would help Barron. The Barron decision set up a dual system of civil liberties: a national one to protect individuals from the central government, and widely varying standards to protect people from state and local government abuses. Therefore, your civil liberties depended upon where you lived and what level of government you faced.

After the Civil War, the Fourteenth Amendment seemed to correct the imbalance defined in Barron by saying that no state “shall abridge the privileges and immunities of citizens of the United States.” However, the Supreme Court did not interpret the privileges and immunities clause as a corrective to Barron. Instead, in the late nineteenth century, the Court began incorporating the Bill of Rights protections using the Fourteenth Amendment’s due process clause instead of the privileges and immunities clause. The due process clause says that states may not “deprive any person of life, liberty, or property, without due process of law.”

In specific cases, the Court incorporated individual Bill of Rights protections into the due process clause by limiting states’ ability to infringe upon them. This action was completed selectively and patiently, waiting for individuals to challenge their state from infringing on specific civil liberties. The process of incorporation lasted into the early twenty-first century.

Examples of Incorporation Cases

Gideon v. Wainwright (1963)–Deals with the Sixth Amendment’s provision that criminal defendants have a right to counsel for their defense. Following the Barron precedent, the Court had long held that indigent defendants facing federal charges would be provided a public defender, but states could set their own rules for defendants facing state criminal charges. Later, the Supreme Court ruled that defendants charged with a capital offense must be provided a lawyer if they could not afford one. Still, the vast majority of criminal defendants do not face either federal or capital charges.

Clarence Earl Gideon in 1961

Clarence Earl Gideon, a 51-year old drifter had been in and out of trouble with the law since he had run away from home at age sixteen. In 1961, Gideon was arrested in Panama City, Florida for breaking into a poolhall and stealing some money and alcohol. At his trial, he asked the judge for a lawyer to defend himself, but was denied because he was charged with neither federal nor capital offenses. Without a lawyer, he was convicted and sentenced to five years in prison.

While incarcerated, Gideon made use of in forma pauperis, a Supreme Court procedure that waives the filing fees and other requirements for indigent petitioners. The Court granted certiorari and appointed Abe Fortas, a well-respected Constitutional lawyer and future Supreme Court justice himself, to represent him. The majority ruled in Gideon’s favor, and remanded the case back to Florida where Gideon was given a retrial with a public defender. Gideon’s lawyer was able to show that the state of Florida could not meet its burden of proving beyond a reasonable doubt that Gideon had done the crime, so he was released.

As a result of the case, the Sixth Amendment was incorporated into the Fourteenth, and criminal defendants must be appointed lawyers if they cannot afford one. This Interpretation is extremely important, because approximately 80 percent of all criminal defendants are too poor to hire their own lawyer. ⁽³⁾ Public defenders are clearly overworked and underpaid, but defendants without any legal assistance are at a huge disadvantage when faced with state power in a court of law.

McDonald v. Chicago (2010)–The most recent incorporation case involved the Second Amendment’s guarantee of the right to bear arms. In 1983, Chicago banned the sale and ownership of handguns. In 2008, the Chicago Police Department refused Otis McDonald, a 76-year old retired maintenance engineer, permission to own a handgun. McDonald wanted a gun to protect himself in his crime-ridden neighborhood. Supported by gun rights groups and joined by three other petitioners, McDonald sued the city.

Meanwhile, in 2008 the Supreme Court had struck down Washington D.C.’s gun ban and said that despite the Second Amendment’s reference to a “well-regulated militia,” it did confer an individual right to bear arms. However, that case did not have broad implications for other city and state gun laws because of D.C.’s special status as a federal district.

In McDonald v. Chicago (2010), the Supreme Court decided (5-4) in McDonald’s favor, and incorporated the individual right to bear arms into the Fourteenth Amendment. The ruling was applicable to states and cities across the United States. However, the opinion made it clear that the individual right to bear arms was subject to regulation.

References

1. Gideon v. Wainwright (1963).
2. Scholar Daniel A. Farber writes, “Picking the Due Process Clause as the home for fundamental rights was something of a historical accident, but not completely ungrounded…The [privileges and immunities clause] and the Ninth Amendment would have given a much stronger basis for protecting fundamental rights from state governments.” See his Retained by the People. New York: Basic Books, 2007. Pages 76-77.
3. Alexa Van Brundt, “Poor People Rely on Public Defenders Who Are Too Overworked to Defend Them,” The Guardian. June 17, 2015.

Media Attributions

• Gideon © Florida State Prison is licensed under a Public Domain license