Introduction
Current Controversy
The idea that the federal Bill of Rights protects liberty of speech and
press, freedom of religion, and other basic rights from violations by
the states has become commonplace, even for lawyers. Indeed, many
Americans probably accepted this commonplace when careful lawyers
knew it was not so. From
1833
to
1868
the Supreme Court held that
none of the rights in the Bill of Rights limited the states.
1
From
1868
to 1925 it found very few of these liberties protected from state action.
2
Those the states were free to flout (so far as federal limitations were
concerned) seemed to include free speech, press, religion,
3
the right
to jury trial,4 freedom from self-incrimination,5 from infliction of
cruel and unusual punishments,6 and more. State constitutions, with
their own bills of rights, were available to protect the individual, but
too often they proved to be paper barriers.
Most, but not all, scholars believe that the Supreme Court was right,
at least as a matter of history, up to
1868.
They believe, that is, that the
founding fathers did not intend for the Bill of Rights to limit the
states.8
In
1868
the Fourteenth Amendment was ratified. Section
1
provided:
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.
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