American Politics Today - Essentials (3rd Ed)

DEFINING CIVIL LIBERTIES| 95

Selective Incorporation and the Fourteenth Amendment

The signifi cance of the Bill of Rights increased somewhat with ratifi cation of the
Fourteenth Amendment in 1868. It was one of the three Civil War Amendments
that attempted to guarantee the newly freed slaves equal rights as citizens of the
United States. (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 Amend-
ment was adopted.
Section 1 of the Fourteenth Amendment says:

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

diction 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 sought to ensure that states would not deny newly freed slaves the
full protection of the law.^8 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 Supreme Court had previously
interpreted a similar clause in the Fifth Amendment to apply only to the federal
government.
However, in 1873, in its fi rst opportunity to interpret the Fourteenth Amend-
ment, the Court continued to rule in favor of protection from
national government actions only. Despite the amendment’s clear
language that “No State shall make or enforce any law” limiting
citizens’ legal “privileges or immunities,” the Court ruled that the
Fourteenth Amendment protected U.S. citizens against actions
of the national government only, not the state governments. The
Court also rejected the plaintiff s’ claim that the state was deny-
ing them “the equal protection of the laws” on the grounds that
the Fourteenth Amendment was intended to strike down laws
that discriminated against blacks.^9 This particular case involved
a slaughterhouse monopoly in Louisiana in which all parties on
both sides of the issue were white.
Over the next 50 years a few justices tried mightily to inter-
pret the Fourteenth Amendment to protect civil liberties against
state government action, culminating in the 1925 case Gitlow v.
New York.^10 Here the Court said for the first time that the Four-
teenth Amendment incorporated one of the amendments in the
Bill of Rights and applied it to the states. The case involved Ben-
jamin Gitlow, a radical Socialist convicted under New York’s
Criminal Anarchy Act of 1902 for advocating the overthrow of
the government. The Court upheld his conviction, arguing that

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 War.

due process clause Part of the

Fourteenth Amendment that forbids

states from denying “life, liberty,

or property” to any person with-

out due process of law. (A nearly

identical clause in the Fifth Amend-

ment applies only to the national

government.)

CAN THE POLICE SEARCH YOUR HOME

without a warrant? After Dollree

Mapp was arrested for possession

of pornographic material, the

case made its way to the Supreme

Court and the search was ruled

unconstitutional. This case

established the “exclusionary

rule” for evidence that is obtained

without a warrant.