6 Original Intent of Bill of Rights and Selective Incorporation
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6 Original Intent of Bill of Rights and Selective Incorporation

October 25, 2019

When the first Congress met 1789
under the new Constitution, James Madison undertook the
responsibility of drafting the amendments that would were to become the Bill of Rights, even though he had originally opposed
inclusion of a bill of rights. You will recall that Madison had opposed
inclusion of a bill of rights in the Constitution in part because he worried about a
restrictive interpretation of individual rights. I’ll invite you to consider the language
of the Ninth Amendment on your own to determine how Madison might have
reconciled his concerns. Let’s turn our attention to
a broader issue. Recall the First Amendment begins with
the phrase “Congress shall make no law…” Originally, the Bill of Rights applied only to the federal government, and not to the several state governments. Parts of the amendments initially proposed by Madison would have limited state governments, but they were not approved by Congress
and therefore the Bill of Rights did not appear to apply to the powers the state governments. As a result, a number of states had established state churches up until the 1820s, and southern states beginning in the 1830s could ban abolitionist literature. In the 1833 case, Barron versus
Baltimore, the Supreme Court specifically ruled
that the Bill of Rights provided quote “security against the encroachments of the general government, not against those of local governments.”
However, today Americans assume that the Bill of Rights
protects their fundamental liberties, such as the right of free speech or the
right of free worship, against state governments as well. Is
this assumption valid? It is — at least in many instances. How did we move from the original intent of the Bill of Rights, limiting the power of the
national government to an understanding that it limits
governmental authority at all levels? In the 1925 judgment on Gitlow versus
New York, the Supreme Court ruled that the Due
Process Clause of the Fourteenth Amendment, which had been adopted in 1868 in the
wake of the Civil War, made certain provisions of the Bill of Rights applicable to the states. The 14th Amendment had been added to the Constitution in an effort to ensure that the states
would not deny the former slaves full citizenship rights. The language of the 14th Amendment
indicates “…nor shall any state deprive any person
of life liberty or property without due process of law…” The question for the Court has been: what does the concept of liberty incorporate? Does it incorporate the freedom of
speech? Does it incorporate the right of free worship? The Court has
determined that the answer in each of these areas is “yes.” The Supreme Court has
subsequently cited the Gitlow case as precedent for a series of decisions that made
most of the provisions of the Bill of Rights applicable to the states. However, there
are few provisions of the Bill of Rights that the Court has not incorporated into the due process clause of the Fourteenth Amendment, such as the right to keep and bear arms
in the Second Amendment or the right to indictment by a grand
jury in the Eighth Amendment. This very critical principal American
constitutional law is known as the doctrine of selective

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