William_T._Bianco,_David_T._Canon]_American_Polit

The origins of civil liberties 109

most valuable of the whole list,” requiring states to protect some civil liberties:

“The equal rights of conscience, the freedom of speech or of the press, and the

right of trial by jury in criminal cases shall not be infringed by any State.”^18 But

Antifederalists feared another power grab by the Federalists in limiting states’

rights, so the proposed amendment was voted down in Congress. This decision

proved consequential, because the national government was quite weak for the

first half of our nation’s history. Because states exercised as much power over

people’s lives as the national government did, if not more, it would have been more

important for the Bill of Rights to limit the reach of the state governments than to

limit that of the federal government. Thus, the Bill of Rights played a surprisingly

small role for more than a century. The Supreme Court used it only once before 1866

to invalidate a federal action—in the infamous Dred Scott case that contributed to

the Civil War.

Selective Incorporation and the Fourteenth Amendment

The significance of the Bill of Rights increased somewhat with the ratification of the

Fourteenth Amendment in 1868. It was one of the three Civil War amendments that

attempted to guarantee equal rights to the newly freed slaves. (The other two Civil

War amendments were the Thirteenth, which abolished slavery, and the Fifteenth,

which gave male former slaves the right to vote.) Northern politicians were concerned

that southerners would deny basic rights to the former slaves, so the sweeping

language of the Fourteenth Amendment was adopted. Section 1 of the Fourteenth

Amendment says:

All persons born or naturalized in the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of the State wherein they reside. 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.

This language was intended to make sure that states would not deny newly freed

slaves the full protection of the law.^19 The due process clause, which forbids any

state from denying “life, liberty, or property, without due process of law,” led to an

especially important expansion of civil liberties because the similar clause in the Fifth

Amendment had previously been interpreted by the Court to apply only to the federal

government.

Evolving Interpretations by the Supreme Court Despite the clear language

of the amendment saying that “no State shall make or enforce any law,” in the

Supreme Court’s first opportunity to interpret the Fourteenth Amendment in 1873

it continued to rule in favor of protecting states from national government actions

only, embracing the “dual citizenship” idea set forth in Barron v. Baltimore (the 1833

case ruling that the Fifth Amendment’s protection of property from being taken by

the government without compensation only applied to the federal government, not to

state governments; see Chapter 3).^20 Over the next 50 years, a minority of justices tried

mightily to strengthen the power of the Fourteenth Amendment and use it to protect

civil liberties against state government action. In two early cases involving property

Civil War amendments

The Thirteenth, Fourteenth, and

Fifteenth Amendments to the

Constitution, which abolished slavery

and granted civil liberties and voting

rights to freed slaves after the Civil

Wa r.

due process clause

Part of the Fourteenth Amendment

that forbids states from denying

“life, liberty, or property” to any

person without due process of law.

(A nearly identical clause in the Fifth

Amendment applies only to the

national government.)

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