Civil Liberties as a National Concern
Russell D. Renka
PS103 - February 9, 2007
º Applying the Bill of
Rights to the states
º The Right to Privacy: All Hell Breaks
Loose
Applying the Bill of Rights to the states Top; Next Down
Civil liberties are spelled out expressly in the U.S. Constitution's Bill of Rights, in other locales such as Article IV within the Constitution, and in state constitutions including that of the State of Missouri (Missouri Constitution, Article I - Bill of Rights). But these alone do not tell you certain important things, such as why the State constitution is largely irrelevant today on civil liberties.
The first and most important principle to understand is selective incorporation. You'll find it in text Ch. 16, p. 437 under the heading "Applying the Bill of Rights to State Governments." It applies practically all the important parts of the federal Bill of Rights to American citizens in the 50 states and the District of Columbia. They all have the same basic rights now regardless of which state constitution or city charter that prevails where they live. That's not what you would find by comparing the State of Missouri Bill of Rights to comparable parts of the other 49 state constitutions. Neither is it evident from a direct reading of the First Amendment of our national Bill of Rights, the first words of which are "Congress shall make no law" abridging freedom of speech or one of the other basic rights found there. This "Congress" referred to our national legislature alone, as each state already had or would have its own bill of rights. Thus Amendment I did not tell any state legislature to make no law abridging rights to speech, press, or assembly. To find remedy against states in the 19th century, one went to that state's current constitution and, of course, to state judicial rulings that determined its meaning in relevant cases. But under incorporation, that's no longer so. Now we all operate under a single constitutional standard regardless of whether the offending law be state or federal in origin.
This practice comes not from the text of either state or national constitution. It comes from 20th century Supreme Court resolve to apply fundamental rights uniformly to the whole nation. That is the message of Palko v. Connecticut, 302 U.S. 319 (1937) cited in f.16 of Ch. 16 from p. 436. This decision gave formal voice to the judicial conviction that certain rights were so elementary in importance that the national Court could not stand by while states or towns violated them. Those most basic of rights are captured most of all in the First Amendment, which essentially confers six of them in separate clauses that fall into three general categories: speech (freedom of speech, freedom of the press), religion (prohibition of officially established churches, preservation of free exercise of religion), and public and political expression (chiefly right of assembly, but also right of petition for redress of grievances). In the 1920s and 1930s the Court moved first to apply incorporation to two of these categories--speech and political expression. Then it moved further by the 1940s to the religion clauses, including the famous (and notorious) proscription against official state prayers being used in public schools (in 1962 and 1963). In the 1960s the Warren Court also incorporated Amendments IV through VII, the so-called "criminal justice" amendments, via cases such as Gideon v. Wainwright, 372 U.S. 335 (1963) where the Court established a single national standard requiring that indigent criminal defendants be furnished legal counsel in state felony criminal cases. The Sixth Amendment's guarantee of "right to counsel" had meant little in the State of Florida before 1963, but a great deal there and everywhere else after that. You can see that in text Table 16.1 (p. 451) where five landmark court cases demonstrate the Warren Court's commitment to extending the Bill of Rights much further into state criminal law procedures.
Now you may naturally ask: given that the First Amendment quite clearly applies itself expressly to "Congress" rather than to the states, how does the Court dare to apply it to the states? Go to the "civil war amendments" for edification, in particular to the famous 14th Amendment adopted in 1868 shortly after the war. This handiwork applied a due process of law clause directly to the states. Why? Because this was intended by the Civil War victors to create and preserve rights of black former slaves in the southern states upon their return to self-governance. Thus in Section I: "nor shall any State deprive any person of life, liberty, or property, without due process of law." We'll soon see that this was insufficient in the late 1800s or most of the 1900s for preventing tyrannical Jim Crow law from curbing practically all rights of black southern citizens; but all this was quite clearly in violation of the 14th Amendment. And the Supreme Court came around to just this view, using this "due process" to sequentially apply one First Amendment right to the states (speech) in 1925, then another (freedom of the press) in 1931, and on further as explained by Justice Holmes in Palko.
I answer this in similar vein to extension of federalism during the 20th century, as we watched the Court turn 90 degrees away from a narrow interpretation of the commerce clause (in Ch. 3). The progressive diminution of distance of people from each other, and their mediated ability to see observance or violation of civil liberties elsewhere in the nation, lent urgency to the notion that one national standard should exist under our Bill of Rights. That was not exclusively a concern of political liberals. Conservatives too were interested in establishing some national standards by which to judge our rights.
The Right to Privacy: All Hell Breaks Loose Top
There was not a lot of controversy on pronouncements by the Court to apply First Amendment rights to the states. That move came in a time when southern states committed egregious violations of fundamental rights of their own black citizens, and routinely got away with it. But from 1900 to the 1960s, the executive and legislative branches left to the Court what modest curbing actions there would be.
The 1960s were a very different story. By this time everything was televised in a way that shrank the borders and distances of states from the citizenry. We saw Alabama with Governor Wallace, witnessed urban riots, had Vietnam daily on 30 minute evening news, and heard and saw outbreaks of "cultural liberalism" expressed by baby boomers and their teachers in rock music venues. There was a sexual revolution, an uprising of women seeking economic empowerment, an en masse move away from early marriages, and availability en masse for the first time of new and easy means to practice birth control.
The constitutional question became whether any constitutional rights to sexual expression exists; and if so, is that right a truly national one? The Court had already found some, in pre-1960s cases where women won the rights to have sex, to bear children, or to marry whom they pleased (within somewhat reasonable adult-consent age limits, of course). You'll see nothing on these subjects in the Missouri or U.S. Constitution's direct wording. In fact, the key word "privacy" doesn't occur there, with or without a sexual context. You must look instead at pronouncements of the Court, as Mr. Lawrence successfully did in his 2003 victory in Lawrence v. Texas, 539 U.S. 558 (2003) cited in text p. 457.
One key came in 1965 via Griswold v. Connecticut, 381 U.S. 479 (1965) which established that state laws prohibiting sale or use of birth control devices were unconstitutional infringements of a person's right to privacy. The Warren Court, famous for its expansive reading of the Constitution (and hated for that by cultural conservatives), declared that this right was implicit to several clauses of the Constitution. It nullified many laws of many states that had previously restricted birth control; and it did this via Court order rather than the slower and more painstaking method of changing old laws in state after state to reflect modern realities and technical change.
Was there an uprising against Griswold? There was in the Catholic Church hierarchy, but not among its laypersons nor among the vast majority of Americans. A great many Catholics and others simply went about using birth control as usual. But Griswold turned out to be a precedent, to Roe v. Wade, 410 U.S.113 (1973), as that decision was similarly grounded on right to privacy.
Once Roe was out there, American began to witness a major cultural collision in our contemporary politics. Although Roe is still the "law of the land" 33 years after being handed down, it is routinely flouted in much of the nation. And it is a central target of cultural conservatives, who left the pews of churches part of the time to go into politics. They often speak of returning to old times, when the Supreme Court had a different and far more restrictive interpretation of the Constitution. Roe and its precursor Griswold are their chief exhibits.
Copyright©2007, Russell D. Renka