Many individuals assume that the first 10 Amendments of the U.S. Constitution are always guaranteed, no matter what jurisdiction takes action – whether it's the federal, state or local police. However, that's only been the case since the 1920s, due to a process known as "selective incorporation."
Selective incorporation is the application of certain rights within an amendment to state and local activity.
Chief Justice John Marshall, who is well known for Marbury v. Madison and other decisions that have expanded the federal government's powers, issued an opinion in the case of Barron v. Baltimore which heavily impacted the civil liberties and rights of many Americans during the next century. At the center of the lawsuit was John Barron’s wharf business which suffered due to Baltimore’s street construction. Barron had argued that Baltimore’s diversion of city streams caused his business to decline – leading him to demand compensation under the Fifth Amendment’s Taking Clause, which required “just compensation” when the “taking” of private property has occurred.
In a unanimous opinion, Marshall ruled in favor of the City of Baltimore – essentially ruling that the Bill of Rights only protected people against grievances made by the federal government, not by the state. Marshall’s reasoning was that the Constitution was made to apply to the federal government, but it did not apply to state governments.
The decision made in Barron v. Baltimore raised another glaring issue: if the Constitution did not apply directly to state governments, then were other constitutional rights no longer guaranteed?
Some rights are particularly essential, such as the right to an attorney or the right to avoid double jeopardy in trial, but they weren't guaranteed by some state governments. The only way to grant those rights would be if an individual was charged by the federal government. The lack of basic protections in trial especially affected African Americans in the Reconstruction Era and to the 1950s, as many were arrested solely based on the color of their skin.
After the 14th Amendment was passed, opponents to the Barron decision sought to nationalize the entire Bill of Rights using two methods: the Privileges and Immunities Clause and the Due Process Clause. The Privileges and Immunities Clause was struck down in the Slaughterhouse Cases which left the Due Process Clause as the last hope for the American people.
It wasn’t until 1897, with the Burlington & Quincy Railroad v. Chicago case, that the 14th Amendment’s Due Process Clause was used to incorporate the Takings Clause from the Fifth Amendment. Despite that decision, the case became centered around economic issues rather than setting a precedent for criminal procedure rights.
The Supreme Court would not enforce state governments to fulfill other parts of the Bill of Rights until the rise of Gitlow v. New York in 1925.
This case included Benjamin Gitlow, who was arrested in 1919 after writing a pamphlet that advocated for a socialist revolution in the U.S. and charged with violating New York’s criminal anarchy law. Gitlow’s attorneys argued that the arrest violated the First Amendment right to freedom of speech – a fundamental right which should be incorporated into the state constitution. While the Supreme Court upheld Gitlow’s conviction under the law, it did incorporate the right to freedom of speech to state constitutions. However, the Court did not provide a definite principle to further incorporate of the Bill of Rights until the Palko v. Connecticut case in 1957.
In the Palko case, the Supreme Court finally determined that the entire Bill of Rights cannot be applied all at once to state governments, but it can be applied on a case by case basis through the process of selective incorporation.
A majority of today's criminal procedure rights were added during the liberal Warren court. Prominent examples of these rights include the right to an attorney (in Gideon v. Wainwright), the right against unreasonable searches and seizures (in Mapp v. Ohio) and the right against self-incrimination (in Miranda v. Arizona).
Civil liberties and rights being applied to state actions may be considered a relatively modern concept.
The process of selective incorporation still affects us today. The most recent case to have a right incorporated was the McDonald v. Chicago case in 2010, which focused on the right to bear arms. This adds to the importance of this year’s presidential election, for the next leader will most likely appoint three to four justices.
