William_T._Bianco,_David_T._Canon]_American_Polit

112 Chapter 4Chapter 4 || Civil LibertiesCivil Liberties

rights and self-incrimination, the Supreme Court started to use the Fourteenth

Amendment to prohibit state governments from violating individual rights—but

stopped short of invoking amendments in the Bill of Rights itself to support their

decisions.^21

This progression culminated in the 1925 case Gitlow v. New York. Here the Court said

for the first time that the Fourteenth Amendment incorporated one of the amendments

in the Bill of Rights (provisions protecting freedom of speech and freedom of the

press) and applied it to the states. The case involved Benjamin 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 his

writings were the “language of direct incitement,” but also warned state governments

that there were limits on such suppression of speech. This decision marked the first

time that the Court ruled that a state law could be challenged because it violated an

amendment in the Bill of Rights.^22

Applying Civil Liberties to the States Slowly over the next 50 years, most civil

liberties covered in the Bill of Rights were applied to the states on a right-by-right,

case-by-case basis through the Fourteenth Amendment. However, this process of

selective incorporation was not smooth and incremental. Rather, it progressed in

surges with flurries of activity in the 1930s and the 1960s (see Table 4.1). As a result,

the Bill of Rights has evolved from a narrow range of protections for people from

national government actions during the early nineteenth century to a robust set of

protections for freedom and liberty that limit national, state, and local government

ac t ions today.

selective incorporation

The process through which most of

the civil liberties granted in the Bill

of Rights were applied to the states

on a case-by-case basis through the

Fourteenth Amendment.

“Why

Should

I Care?”

Today the Bill of Rights is one of the most revered and important parts of the

Constitution. But it didn’t start out that way. Initially, the Bill of Rights applied to only

the national government, not the states. But through the Fourteenth Amendment and

the process of selective incorporation, the Supreme Court has gradually applied most

of the Bill of Rights to the states. While all levels of government must respect our civil

liberties today, there are many unresolved areas in terms of balancing interests and

drawing lines. The next time you feel strongly about an issue concerning civil liberties,

take some time to consider the other side—these questions are often not as black-and-

white as they seem. Should speakers who hold extreme, even racist, views be allowed

to speak on campus? How do we balance our freedom of speech or freedom from illegal

searches with the need for national security?

Freedom of Religion

The First Amendment’s ringing words are the most famous statement of personal

freedoms in the Constitution: “Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise thereof; or abridging the

freedom of speech, or of the press; or the right of the people peaceably to assemble, and

to petition the Government for a redress of grievances.” (The How It Works graphic

illustrates how much is packed into this one amendment.)

DESCRIBE THE FIRST

AMENDMENT RIGHTS RELATED

TO FREEDOM OF RELIGION

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