║ Applying the Bill of
Rights to the states
║ The Right to Privacy: All Hell Breaks Loose
║ Works Cited
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 and elsewhere such as Article I, Section 9 (Limits on Legislative Power, including writ of habeas corpus) and Article IV on the States. And this being a federal system, each of 50 state constitutions have provisions such as the 33 separate titles of the State of Missouri (Missouri Constitution, Article I - Bill of Rights; and Section 12 on habeas corpus). But this latter fails to explain why state constitutions are almost irrelevant today where civil liberties are concerned. Here I help Patterson along in explaining that.
First note Patterson's term national citizenship as "the notion that Americans should be equal in their rights and responsibilities regardless of the state in which they live" (Patterson 2007, 83). It's largely a result of 20th century realization that state boundaries had become less and less relevant. Once a national freeway system existed, anybody born in one corner of the country could easily move to the others. Should one's rights change markedly in moving from state to state? They could do so in 1833. That's when Barron v. Mayor & City Council of Baltimore, 32 U.S. 243 (1833) made clear that City of Baltimore wharf owner John Barron could not find remedy for his property damage in the federal Fifth Amendment, since the State of Maryland's own Constitution held forth any remedy for an act by the City. A century and more later when such property might easily reside across the country in fungible (paper or electronic) form, states had become far less relevant for toting up one's list of rights.
What's more, by the 1920s our news went truly national in real time, via broad dissemination of radio, news tickers on Wall Street, news briefs in movie theaters. In the 1950s television reached our homes, as did long-distance telephones; and by 1963 there were three daily national television news shows. A lynching in Mississippi became daily news in Maine with visuals; that's different from merely hearing "Strange Fruit" allusion to racial lynchings in a Billie Holliday recording. Flagrant civil rights violations in Mississippi also looked close at hand in California, where Watts in summer 1965 saw circulation of 1964 pictures from arrogant Mississippi rural sheriffs chewing Red Man in court during arraignment for murder of three civil rights workers, two of them Jewish northerners seen by Neshoba County locals as "outside agitators" (Linder, The Mississippi Burning Trial: United States vs. Cecil price et al. (1967)). Combine civil rights with media, and the nation becomes 1 unit more than 50 separate ones. (We'll see more on this in Chapter 5 on equal rights.)
The U.S. Supreme Court put this 20th century citizenship into practice via selective incorporation (Patterson 2007, Ch. 4, p. 104; Incorporation (Bill of Rights) - Wikipedia; Constitutional Rights Foundation, The 14th Amendment and the "Second Bill of Rights"). Begun in the 1920s on First Amendment rights (p. 104), incorporation now applies practically all the important parts of the federal Bill of Rights to the 50 states and District of Columbia. Citizens have the same basic rights now regardless of which state constitution or city charter prevails where they live. That's not what you would find by comparing the Missouri Bill of Rights to comparable parts of the other 49 state constitutions. Neither is it evident from the First Amendment, which says "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. Yet now we all operate under a single constitutional minimum standard of rights regardless of whether the offending law be state or federal in origin.
Selective incorporation came from the 20th century Supreme Court's resolve to apply fundamental rights uniformly to the whole nation. It's the Court's way of making "national citizenship" a meaningful thing. It began where the Bill of Rights does, at the First Amendment's collection of clauses addressing its basic freedoms. There are six distinct clauses fron 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).
The "selective" part of this refers to the one-clause-at-a-time movement to make our rights national. Justice Benjamin Cardozo in Palko v. Connecticut, 302 U.S. 319 (1937) said the Bill of Rights First Amendment rights were truly fundamental, but the rights of the accused in later amendments had lesser status (also Palko v. Connecticut - Wikipedia). This formally established selective incorporation as applicable when a right was so important that the national Court could not stand by while states or towns violated it.
During the 1960s, the "criminal justice" Amendments IV, V, VI and VII were all applied to the states. The Warren Court did so via cases like Gideon v. Wainwright, 372 U.S. 335 (1963) which established that felony criminal defendants be furnished legal counsel in any state felony criminal case. The Sixth Amendment's guarantee of "right to counsel" had applied to states only in limited numbers of criminal cases before 1963, including capital trials since 1932 (Powell v. Alabama; Powell v Alabama 287 U.S. 45; 53 S. Ct. 55 (1932); also Linder, The Trials of The Scottsboro Boys). But since 1963 it covers all felony-level state criminal proceedings (Patterson 2007, Ch. 4, Table 4-3, p. 117). The First Amendment no longer stood alone for being applied to states.
The historical time frame for all this is a slow one. All incorporation is constitutionally grounded in the 14th Amendment adopted in 1868 shortly after the Civil War. Its due process clause applied directly to the states. Why? Because the Civil War victors sought 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." That was in 1868. Two generations later, the Supreme Court invoked that clause to sequentially apply free expression (1925 via Gitlow), speech (1927 via Fiske), press (1931 via Near), religion (1934 via Hamilton), and assembly plus petition (1937 via DeJonge) (Patterson 2007, Ch. 4, Table 4-2, p. 104).
The Right to Privacy: All Hell Breaks Loose Top; Next Down
There was not a lot of national 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. Civil rights and black American alienation from the mainstream was part of it. We visually witnessed Alabama with Governor Wallace and brutality at Selma, and saw urban riots in Watts and Detroit and Washington D.C. We had assassinations, of President Kennedy in 1963 and Martin Luther King and Bobby Kennedy in 1968. We had the War in Vietnam daily on 30 minute evening news from 1965 onward. And there was sex and drugs and unusual music. We 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 for the first time of new and easy means to practice birth control. Sex escaped its historic ties to marriage and child-bearing.
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 persons 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 high Court, as Mr. Lawrence successfully did in his 2003 victory in Lawrence v. Texas, 539 U.S. 558 (2003) cited in Patterson on p. 114.
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 (Patterson 2007, 114). Modern birth control was a fairly recent invention, but by the 1960s there was rapidly expanding use among both married and unmarried women. 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, especially the Ninth Amendment. In effect, this is a furtherance of selective incorporation. 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.
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 Catholic laypersons 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. Abortion is a different story.
Once Roe was pronounced in January 1973, there began a major cultural collision in our politics. Although Roe is still the "law of the land" 35 years after being handed down, it is routinely flouted in much of the nation. And it is a central target of cultural conservatives, who went from the pews of churches to politics in a manner exemplified by the late Jerry Falwell of Lynchburg, Va. They often speak of returning to old times, when the Supreme Court had a different and far more restrictive interpretation of the Constitution. They accuse the high Court of practicing the politics of an "imperial judiciary" and seek return to an older and more narrowly interpreted Constitution. Roe and its legal precursor Griswold are among their chief exhibits.
Nationalized civil liberties is a sign of decline in autonomy of our 50 separate states. That's a natural development associated with 20th century creation of a common economic and communications market. The due process clause of the 14th Amendment has helped foster national citizenship.
So also has the commerce clause of the Constitution's Article I, Section 8 (powers of Congress). In the late 1930s the future General Eisenhower spent most a week moving components of the U.S. Army from Louisiana to California over the patchwork of county and state roads that passed for our highway system. In 1956 he signed the first law authorizing federal grants in aid to construct a single high-speed national highway system. Today the Eisenhower-inspired freeway system does the same troop transport job in a mere day or so. Radio, telephones, television, cell networks, internet--you get the picture, that no state is now truly remote from any other. We move ourselves and goods and services freely across their boundaries with very little concern about barriers to trade.
And we expect the same fundamental rights to follow us no matter where in these 50 states plus D.C. that we happen to live. That's the most elemental reason why civil liberties have gone national.
Patterson, Thomas E. 2007. The American Democracy, 8th edition. New York: McGraw-Hill.
Copyrightę2009, Russell D. Renka