First Through Tenth Amendments

Bill of Rights

[[Page 951]]



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                     AMENDMENTS TO THE CONSTITUTION

                     FIRST THROUGH TENTH AMENDMENTS

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[[Page 953]]
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                             BILL OF RIGHTS

                               __________

                                CONTENTS

                                                                    Page
        History...................................................   955
        Formulation and Adoption..................................   955
        Bill of Rights and the States.............................   957
        The Fourteenth Amendment..................................   957
                                                          Bill of Rights

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                     FIRST THROUGH TENTH AMENDMENTS

                             Bill of Rights

        On September 12, five days before the Convention adjourned,
Mason and Gerry raised the question of adding a bill of rights to the
Constitution. Said Mason: ``It would give great quiet to the people; and
with the aid of the State declarations, a bill might be prepared in a
few hours.'' But the motion of Gerry and Mason to appoint a committee
for the purpose of drafting a bill of rights was rejected.\1\ Again, on
September 14, Pinckney and Gerry sought to add a provision ``that the
liberty of the Press should be inviolably observed--.'' But after
Sherman observed that such a declaration was unnecessary, because
``[t]he power of Congress does not extend to the Press,'' this
suggestion too was rejected.\2\ It cannot be known accurately why the
Convention opposed these suggestions. Perhaps the lateness of the
Convention, perhaps the desire not to present more opportunity for
controversy when the document was forwarded to the States, perhaps the
belief, asserted by the defenders of the Constitution when the absence
of a bill of rights became critical, that no bill was needed because
Congress was delegated none of the powers which such a declaration would
deny, perhaps all these contributed to the rejection.\3\

        \1\2 M. Farrand, The Records of the Federal Convention of 1787,
587-88 (rev. ed. 1937).
        \2\Id. at 617-618.
        \3\The argument most used by proponents of the Constitution was
that inasmuch as Congress was delegated no power to do those things
which a bill of rights would proscribe no bill of rights was necessary
and that it might be dangerous because it would contain exceptions to
powers not granted and might therefore afford a basis for claiming more
than was granted. The Federalist No. 84 at 555-67 (Alexander Hamilton)
(Modern Library ed. 1937).
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        In any event, the opponents of ratification soon made the
absence of a bill of rights a major argument\4\ and some friends of the
document, such as Jefferson,\5\ strongly urged amendment to in

[[Page 956]]
clude a declaration of rights.\6\ Several state conventions ratified
while urging that the new Congress to be convened propose such
amendments, 124 amendments in all being put forward by these States.\7\
Although some dispute has occurred with regard to the obligation of the
first Congress to propose amendments, Madison at least had no doubts\8\
and introduced a series of proposals,\9\ which

[[Page 957]]
he had difficulty claiming the interest of the rest of Congress in
considering. At length, the House of Representatives adopted 17
proposals; the Senate rejected two and reduced the remainder to twelve,
which were accepted by the House and sent on to the States\10\ where ten
were ratified and the other two did not receive the requisite number of
concurring States.\11\

        \4\Substantial excerpts from the debate in the country and in
the ratifying conventions are set out in 1 B. Schwartz (ed.), The Bill
of Rights: A Documentary History 435-620 (1971); 2 id. at 627-980. The
earlier portions of volume 1 trace the origins of the various guarantees
back to the Magna Carta.
        \5\In a letter to Madison, Jefferson indicated what he did not
like about the proposed Constitution. ``First the omission of a bill of
rights providing clearly and without the aid of sophisms for freedom of
religion, freedom of the press, protection against standing armies,
restriction against monopolies, the eternal and unremitting force of the
habeas corpus laws, and trials by jury in all matters of the fact
triable by the laws of the land and not by the law of Nations. . . . Let
me add that a bill of rights is what the people are entitled to against
every government on earth, general or particular, and what no just
government should refuse, or rest on inference.'' 12 The Papers of
Thomas Jefferson 438, 440 (J. Boyd ed. 1958). In suggested that nine
States should ratify and four withhold ratification until amendments
adding a bill of rights were adopted. Id. at 557, 570, 583. Jefferson
still later endorsed the plan put forward by Massachusetts to ratify and
propose amendments. 14 id. at 649.
        \6\Thus, George Washington observed in letters that a ratified
Constitution could be amended but that making such amendments conditions
for ratification was ill-advised. 11 The Writings of George Washington
249 (W. Ford ed. 1891).
        \7\2 B. Schwartz (ed.), The Bill of Rights: A Documentary
History 627-980 (1971). See also H. Ames, The Proposed Amendments to the
Constitution 19 (1896).
        \8\Madison began as a doubter, writing Jefferson that while
``[m]y own opinion has always been in favor of a bill of rights,'' still
``I have never thought the omission a material defect, nor been anxious
to supply it even by subsequent amendment. . . .'' 5 The Writings of
James Madison 269. (G. Hunt ed. 1904). His reasons were four. (1) The
Federal Government was not granted the powers to do what a bill of
rights would proscribe. (2) There was reason ``to fear that a positive
declaration of some of the most essential rights could not be obtained
in the requisite latitude. I am sure that the rights of conscience in
particular, if submitted to public definition would be narrowed much
more than they are likely ever to be by an assumed power.'' (3) A
greater security was afforded by the jealousy of the States of the
national government. (4) ``[E]xperience proves the inefficacy of a bill
of rights on those occasions when its controul is most needed. Repeated
violations of these parchment barriers have been committed by
overbearing majorities in every State. . . . Wherever the real power in
a Government lies, there is the danger of oppression. In our Governments
the real power lies in the majority of the Community, and the invasion
of private rights is chiefly to be apprehended, not from acts of
Government contrary to the sense of its constituents, but from acts in
which the Government is the mere instrument of the major number of the
Constituents. . . . Wherever there is a interest and power to do wrong,
wrong will generally be done, and not less readily by a powerful &
interested party than by a powerful and interested prince.'' Id. at 272-
73. Jefferson's response acknowledged the potency of Madison's
reservations and attempted to answer them, in the course of which he
called Madison's attention to an argument in favor not considered by
Madison ``which has great weight with me, the legal check which it puts
into the hands of the judiciary. This is a body, which if rendered
independent, and kept strictly to their own department merits great
confidence for their learning and integrity.'' 14 The Papers of Thomas
Jefferson 659 (J. Boyd ed. 1958). Madison was to assert this point when
he introduced his proposals for a bill of rights in the House of
Representatives. 1 Annals of Congress 439 (June 8, 1789).
        In any event, following ratification, Madison in his successful
campaign for a seat in the House firmly endorsed the proposal of a bill
of rights. ``[I]t is my sincere opinion that the Constitution ought to
be revised, and that the first Congress meeting under it ought to
prepare and recommend to the States for ratification, the most
satisfactory provisions for all essential rights, particularly the
rights of Conscience in the fullest latitude, the freedom of the press,
trials by jury, security against general warrants &c.;'' 5 The Writings
of James Madison 319 (G. Hunt ed. 1904).
        \9\1 Annals of Congress 424-50 (June 8, 1789). The proposals as
introduced are at pp. 433-36. The Members of the House were indisposed
to moving on the proposals.
        \10\Debate in the House began on July 21, 1789, and final
passage was had on August 24, 1789. 1 Annals of Congress 660-779. The
Senate considered the proposals from September 2 to September 9, but no
journal was kept. The final version compromised between the House and
Senate was adopted September 24 and 25. See 2 B. Schwartz, (ed.), The
Bill of Rights: A Documentary History 983-1167 (1971).
        \11\The two not ratified dealt with the ratio of population to
representatives and with compensation of Members of Congress. H. Ames,
The Proposed Amendments to the Constitution 184, 185 (1896). The latter
proposal was ratified in 1992 as the 27th Amendment.
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        Bill of Rights and the States.--One of the amendments which the
Senate refused to accept--declared by Madison to be ``the most valuable
of the whole list''\12\--read: ``The equal rights of conscience, the
freedom of speech or of the press, and the right of trial by jury in
criminal cases shall not be infringed by any State.''\13\ In spite of
this rejection, the contention that the Bill of Rights--or at least the
first eight--was applicable to the States was repeatedly pressed upon
the Supreme Court. By a long series of decisions, beginning with the
opinion of Chief Justice Marshall in Barron v. Baltimore,\14\ the
argument was consistently rejected. Nevertheless, the enduring vitality
of natural law concepts encouraged renewed appeals for judicial
protection through application of the Bill of Rights.\15\

        \12\1 Annals of Congress 755 (August 17, 1789).
        \13\Id.
        \14\32 U.S. (7 Pet.) 243 (1833). See also Livingston's Lessee v.
Moore, 32 U.S. (7 Pet.) 469 (1833); Permoli v. First Municipality, 44
U.S. (3 How.) 589, 609 (1845); Fox v. Ohio, 46 U.S. (5 How.) 410 (1847);
Smith v. Maryland, 59 U.S. (18 How.) 71 (1855); Withers v. Buckley, 61
U.S. (20 How.) 84 (1858); Pervear v. Massachusetts, 72 U.S. (5 Wall.)
475 (1867); Twitchell v. Commonwealth, 74 U.S. (7 Wall.) 321 (1869).
        \15\Thus, Justice Miller for the Court in Loan Association v.
Topeka, 87 U.S. (20 Wall.) 655, 662, 663 (1875): ``It must be conceded
that there are . . . rights in every free government beyond the control
of the State . . . There are limitations on [governmental] power which
grow out of the essential nature of all free governments. Implied
reservations of individual rights, without which the social compact
could not exist, and which are respected by all governments entitled to
the name.''
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        The Fourteenth Amendment.--Following the ratification of the
Fourteenth Amendment, litigants disadvantaged by state laws and policies
first resorted unsuccessfully to the privileges and immunities clause of
Sec. 1 for judicial protection.\16\ Then, claimants seized upon the due
process clause of the Fourteenth Amendment as guaranteeing certain
fundamental and essential safeguards,

[[Page 958]]
without pressing the point of the applicability of the Bill of
Rights.\17\ It was not until 1887 that a litigant contended that,
although the Bill of Rights had not limited the States, yet so far as
they secured and recognized the fundamental rights of man they were
privileges and immunities of citizens of the United States and were now
protected against state abridgment by the Fourteenth Amendment.\18\ This
case the Court decided on other grounds, but in a series of subsequent
cases it confronted the argument and rejected it,\19\ though over the
dissent of the elder Justice Harlan, who argued that the Fourteenth
Amendment in effect incorporated the Bill of Rights and made them
effective restraints on the States.\20\ Until 1947, this dissent made no
headway,\21\ but in Ad

[[Page 959]]
amson v. California\22\ a minority of four Justices were marshalled
behind Justice Black, who contended that his researches into the history
of the Fourteenth Amendment left him in no doubt ``that the language of
the first section of the Fourteenth Amendment, taken as a whole, was
thought by those responsible for its submission to the people, and by
those who opposed its submission, sufficiently explicit to guarantee
that thereafter no state could deprive its citizens of the privileges
and protections of the Bill of Rights.''\23\ Scholarly research
stimulated by Justice Black's view tended to discount the validity of
much of the history recited by him and to find in the debates in
Congress and in the ratifying conventions no support for his
contention.\24\ Other scholars, going beyond the immediate debates,
found in the pre- and post-Civil War period a substantial body of
abolitionist constitutional thought which could be shown to have greatly
influenced the principal architects, and observed that all three
formulations of Sec. 1, privileges and immunities, due process, and
equal protection, had long been in use as shorthand descriptions for the
principal provisions of the Bill of Rights.\25\

        \16\Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873).
        \17\Walker v. Sauvinet, 92 U.S. 90 (1876); United States v.
Cruikshank, 92 U.S. 542 (1876); Hurtado v. California, 110 U.S. 516
(1884); Presser v. Illinois, 116 U.S. 252 (1886). In Hurtado, in which
the Court held that indictment by information rather than by grand jury
did not offend due process, the elder Justice Harlan entered a long
dissent arguing that due process preserved the fundamental rules of
procedural justice as they had existed in the past, but he made no
reference to the possibility that the Fourteenth Amendment due process
clause embodied the grand jury indictment guarantee of the Fifth
Amendment.
        \18\Spies v. Illinois, 123 U.S. 131 (1887).
        \19\In re Kemmler, 136 U.S. 436 (1890); McElvaine v. Brush, 142
U.S. 155 (1891); O'Neil v. Vermont, 144 U.S. 323 (1892).
        \20\In O'Neil v. Vermont, 144 U.S. 323, 370 (1892), Justice
Harlan, with Justice Brewer concurring, argued ``that since the adoption
of the Fourteenth Amendment, no one of the fundamental rights of life,
liberty or property, recognized and guaranteed by the Constitution of
the United States, can be denied or abridged by a State in respect to
any person within its jurisdiction. These rights are, principally,
enumerated in the earlier Amendments of the Constitution.'' Justice
Field took the same position. Id. at 337. Thus, he said: ``While
therefore, the ten Amendments, as limitations on power, and so far as
they accomplish their purpose and find their fruition in such
limitations, are applicable only to the Federal government and not to
the States, yet, so far as they declare or recognize the rights of
persons, they are rights belonging to them as citizens of the United
States under the Constitution; and the Fourteenth Amendment, as to all
such rights, places a limit upon state power by ordaining that no State
shall make or enforce any law which shall abridge them.'' Id. at 363.
Justice Harlan reasserted this view in Maxwell v. Dow, 176 U.S. 581, 605
(1900) (dissenting opinion), and in Twining v. New Jersey, 211 U.S. 78,
114 (1908) (dissenting opinion). Justice Field was no longer on the
Court and Justice Brewer did not in either case join Justice Harlan as
he had done in O'Neil.
        \21\Cf. Palko v. Connecticut, 302 U.S. 319, 323 (1937), in which
Justice Cardozo for the Court, including Justice Black, said: ``We have
said that in appellant's view the Fourteenth Amendment is to be taken as
embodying the prohibitions of the Fifth. His thesis is even broader.
Whatever would be a violation of the original bill of rights (Amendments
I to VIII) if done by the federal government is now equally unlawful by
force of the Fourteenth Amendment if done by a state. There is no such
general rule.'' See Frankfurter, Memorandum on ``Incorporation'' of the
Bill of Rights Into the Due Process Clause of the Fourteenth Amendment,
78 Harv. L. Rev. 746 (1965). According to Justice Douglas' calculations,
ten Justices had believed that the Fourteenth Amendment incorporated the
Bill of Rights, but a majority of the Court at any one particular time
has never been of that view. Gideon v. Wainwright, 372 U.S. 355, 345-47
(1963) (concurring opinion). See also Malloy v. Hogan, 378 U.S. 1, 4 n.2
(1964). It must be said, however that many of these Justices were not
consistent in asserting this view. Justice Goldberg probably should be
added to the list. Pointer v. Texas, 380 U.S. 400, 410-14 (1965)
(concurring opinion).
        \22\332 U.S. 46 (1947).
        \23\Id. at 74, Justice Black's contentions, id. at 68-123, were
concurred in by Justice Douglas. Justices Murphy and Rutledge also
joined this view but went further. ``I agree that the specific
guarantees of the Bill of Rights should be carried over intact into the
first section of the Fourteenth Amendment. But I am not prepared to say
that the latter is entirely and necessarily limited by the Bill of
Rights. Occasions may arise where a proceeding falls so far short of
conforming to fundamental standards of procedure as to warrant
constitutional condemnation in terms of a lack of due process despite
the absence of a specific provision in the Bill of Rights.'' Id. at 124.
Justice Black rejected this extension as an invocation of ``natural law
due process.'' For examples in which he and Justice Douglas split over
the application of nonspecified due process limitations, see, e.g.,
Griswold v. Connecticut, 381 U.S. 479 (1965); In re Winship, 397 U.S.
358 (1970).
        \24\The leading piece is Fairman, Does the Fourteenth Amendment
Incorporate the Bill of Rights? 2 Stan. L. Rev. 5 (1949).
        \25\Graham, Early Antislavery Backgrounds of the Fourteenth
Amendment, 1950 Wisc. L. Rev. 479, 610; Graham, Our ``Declaratory''
Fourteenth Amendment, 7 Stan. L. Rev. 3 (1954); J. tenBroek, Equal Under
Law (1965 enlarged ed.). The argument of these scholars tends to support
either a ``selective incorporation'' theory or a fundamental rights
theory, but it emphasized the abolitionist stress on speech and press as
well as on jury trials as included in either construction.
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        Unresolved perhaps in theory, the controversy in fact has been
mostly mooted through the ``selective incorporation'' of a majority of
the provisions of the Bill of Rights.\26\ This process seems to have

[[Page 960]]
had its beginnings in an 1897 case in which the Court, without
mentioning the just compensation clause of the Fifth Amendment, held
that the Fourteenth Amendment's due process clause forbade the taking of
private property without just compensation.\27\ Then, in Twining v. New
Jersey\28\ the Court observed that ``it is possible that some of the
personal rights safeguarded by the first eight amendments against
National action may also be safeguarded against state action, because a
denial of them would be a denial of due process of law . . . . If this
is so, it is not because those rights are enumerated in the first eight
amendments, but because they are of such nature that they are included
in the conception of due process of law.'' And in Gitlow v. New
York,\29\ the Court in dictum said: ``For present purposes we may and do
assume that freedom of speech and of the press--which are protected by
the First Amendment from abridgment by Congress--are among the
fundamental personal rights and `liberties' protected by the due process
clause of the Fourteenth Amendment from impairment by the States.''
After quoting the language set out above from Twining v. New Jersey, the
Court in 1932 said that ``a consideration of the nature of the right and
a review of the expressions of this and other courts, makes it clear
that the right to the aid of counsel is of this fundamental
character.''\30\ The doctrine of this period was best formulated by
Justice Cardozo, who observed that the due process clause of the
Fourteenth Amendment might proscribe a certain state procedure, not
because the proscription was spelled out in one of the first eight
amendments, but because the procedure ``offends some principle of
justice so rooted in the traditions and conscience of our people as to
be ranked as fundamental,''\31\ because certain proscriptions were
``implicit in the concept of ordered `liberty.'''\32\

[[Page 961]]
As late as 1958, Justice Harlan was able to assert in an opinion of the
Court that a certain state practice fell afoul of the Fourteenth
Amendment because ``[i]t is beyond debate that freedom to engage in
association for the advancement of beliefs and ideas is an inseparable
aspect of the `liberty' assured by the Due Process Clause of the
Fourteenth Amendment, which embraces freedom of speech . . . .''\33\

        \26\Williams v. Florida, 399 U.S. 78, 130-32 (1970) (Justice
Harlan concurring in part and dissenting in part). The language of this
process is somewhat abstruse. Justice Frankfurter objected strongly to
``incorporation'' but accepted other terms. ``The cases say the First
[Amendment] is `made applicable' by the Fourteenth or that it is taken
up into the Fourteenth by `absorption,' but not that the Fourteenth
`incorporates' the First. This is not a quibble. The phrase `made
applicable' is a neutral one. The concept of `absorption' is a
progressive one, i.e., over the course of time something gets absorbed
into something else. The sense of the word `incorporate' implies
simultaneity. One writes a document incorporating another by reference
at the time of the writing. The Court has used the first two forms of
language, but never the third.'' Frankfurter, Memorandum on
`Incorporation' of the Bill of Rights Into the Due Process Clause of the
Fourteenth Amendment, 78 Harv. L. Rev. 746, 747-48 (1965). It remains
true that no opinion of the Court has used ``incorporation'' to describe
what it is doing, cf. Washington v. Texas, 388 U.S. 14, 18 (1967);
Benton v. Maryland, 395 U.S. 784, 794 (1969), though it has regularly
been used by dissenters. E.g., Pointer v. Texas, 380 U.S. 400, 408
(1965) (Justice Harlan); Williams v. Florida, 399 U.S. 78, 130 (1970)
(Justice Harlan); Williams v. Florida, supra, 143 (Justice Stewart).
        \27\Chicago, B. & Q. R.R. v. City of Chicago, 166 U.S. 226
(1897).
        \28\211 U.S. 78, 99 (1908).
        \29\268 U.S. 652, 666 (1925).
        \30\Powell v. Alabama, 287 U.S. 45, 68 (1932).
        \31\Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).
        \32\Palko v. Connecticut, 302 U.S. 319, 325 (1937). Justice
Frankfurter was a strong advocate of this approach to the Fourteenth
Amendment's due process clause. E.g., Rochin v. California, 342 U.S. 165
(1952); Adamson v. California, 332 U.S. 46, 59 (1947) (concurring
opinion). Justice Harlan followed him in this regard. E.g., Benton v.
Maryland, 395 U.S. 784, 801 (1969) (dissenting opinion); Williams v.
Florida, 399 U.S. 78, 117 (1970) (concurring in part and dissenting in
part). For early applications of the principles to void state practices,
see Moore v. Dempsey, 261 U.S. 86 (1923); Meyer v. Nebraska, 262 U.S.
390 (1923); Tumey v. Ohio, 273 U.S. 510 (1927); Powell v. Alabama, 287
U.S. 45 (1932); Mooney v. Holohan, 294 U.S. 103 (1935); Brown v.
Mississippi, 297 U.S. 278 (1936); Rochin v. California, supra.
        \33\NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460
(1958).
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        But this process of ``absorption'' into due process of rights
which happened also to be specifically named in the Bill of Rights came
to be supplanted by a doctrine which had for a time coexisted with it,
the doctrine of ``selective incorporation.'' This doctrine holds that
the due process clause incorporates the text of certain of the
provisions of the Bill of Rights. Thus in Malloy v. Hogan,\34\ Justice
Brennan was enabled to say: ``We have held that the guarantees of the
First Amendment, . . . the prohibition of unreasonable searches and
seizures of the Fourth Amendment, . . . and the right to counsel
guaranteed by the Sixth Amendment, . . . are all to be enforced against
the States under the Fourteenth Amendment according to the same
standards that protect those personal rights against federal
encroachment.'' And Justice Clark was enabled to say: ``First, this
Court has decisively settled that the First Amendment's mandate that
`Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof' has been made wholly applicable
to the States by the Fourteenth

[[Page 962]]
Amendment.''\35\ Similar language asserting that particular provisions
of the Bill of Rights have been applied to the States through the
Fourteenth Amendment's due process clause may be found in numerous
cases.\36\ Most of the provisions have now been so applied.\37\

        \34\378 U.S. 1, 10 (1964). In Washington v. Texas, 388 U.S. 14,
18 (1967), Chief Justice Warren for the Court said that the Court has
``increasingly looked to the specific guarantees of the [Bill of Rights]
to determine whether a state criminal trial was conducted with due
process of law.'' And in Benton v. Maryland, 395 U.S. 784, 794 (1969),
Justice Marshall for the Court wrote: ``[W]e today find that the double
jeopardy prohibition of the Fifth Amendment represents a fundamental
ideal in our constitutional heritage, and that it should apply to the
States through the Fourteenth Amendment.'' In this process, the Court
has substantially increased the burden of showing that a procedure is
fundamentally fair as carried by those who would defend a departure from
the requirement of the Bill of Rights. That is, previously the Court has
asked whether a civilized system of criminal justice could be imagined
that did not accord the particular procedural safeguard. E.g., Palko v.
Connecticut, 302 U.S. 319, 325 (1937). The present approach is to
ascertain whether a particular guarantee is fundamental in the light of
the system existent in the United States, which can make a substantial
difference. Duncan v. Louisiana, 391 U.S. 145, 149 n.14 (1968). Quaere,
the approach followed in Williams v. Florida, 399 U.S. 78 (1970), and
Apodaca v. Oregon, 406 U.S. 404 (1972).
        \35\Abington School District v. Schempp, 374 U.S. 203, 215
(1963). Similar formulations for the speech and press clauses appeared
early. E.g., West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624,
639 (1943); Schneider v. Irvington, 308 U.S. 147, 160 (1939). In Griffin
v. California, 380 U.S. 609, 615 (1965), Justice Douglas stated the
holding as ``that the Fifth Amendment, in its direct application to the
Federal Government, and in its bearing on the States by reason of the
Fourteenth Amendment, forbids'' the state practice at issue.
        \36\E.g., Mapp v. Ohio, 367 U.S. 643 (1961); Klopfer v. North
Carolina, 386 U.S. 213 (1967); Duncan v. Louisiana, 391 U.S. 145 (1968);
Ashe v. Swenson, 397 U.S. 436 (1970); Baldwin v. New York, 399 U.S. 66
(1970).
        \37\The following list does not attempt to distinguish between
those Bill of Rights provisions which have been held to have themselves
been incorporated or absorbed by the Fourteenth Amendment and those
provisions which the Court indicated at the time were applicable against
the States because they were fundamental and not merely because they
were named in the Bill of Rights. Whichever formulation was originally
used, the former is now the one used by the Court. Duncan v. Louisiana,
391 U.S. 145, 148 (1968).
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      First Amendment--
        Religion--
          Free exercise: Hamilton v. Regents, 293 U.S. 245, 262 (1934);
Cantwell v. Connecticut, 310 U.S. 296, 300, 303 (1940).
          Establishment: Everson. v. Board of Education, 330 U.S. 1, 3,
7, 8 (1947); Illinois ex rel. McCollum v. Board of Education, 333 U.S.
203 (1948).
        Speech--Gitlow v. New York, 268 U.S. 652, 666 (1925); Fiske v.
Kansas, 274 U.S. 380 (1927); Stromberg v. California, 283 U.S. 359
(1931).
        Press--Near v. Minnesota ex rel. Olson, 283 U.S. 697, 701
(1931).
        Assembly--DeJonge v. Oregon, 299 U.S. 353 (1937).
        Petition--DeJonge v. Oregon, supra, 364, 365; Hague v. CIO, 307
U.S. 496 (1939); Bridges v. California, 314 U.S. 252 (1941).
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      Fourth Amendment--
        Search and seizure--Wolf v. Colorado, 338 U.S. 25 (1949); Mapp
v. Ohio, 367 U.S. 643 (1961).
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      Fifth Amendment--
        Double jeopardy--Benton v. Maryland, 395 U.S. 784 (1969); Ashe
v. Swenson, 397 U.S. 436 (1970) (collateral estoppel).
        Self-incrimination--Malloy v. Hogan, 378 U.S. 1 (1964); Griffin
v. California, 380 U.S. 609 (1965).
        Just compensation--Chicago, B. & Q. R.R. v. City of Chicago, 166
U.S. 226 (1897).
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      Sixth Amendment--
        Speedy trial--Klopfer v. North Carolina, 386 U.S. 213 (1967).
        Public trial--In re Oliver, 333 U.S. 257 (1948).
        Jury trial--Duncan v. Louisiana, 391 U.S. 145 (1968).
        Impartial Jury--Irvin v. Dowd, 366 U.S. 717 (1961); Turner v.
Louisiana, 379 U.S. 466 (1965).
        Notice of charges--In re Oliver, 333 U.S. 257 (1948).
        Confrontation--Pointer v. Texas, 380 U.S. 400 (1965); Douglas v.
Alabama, 380 U.S. 415 (1965).
        Compulsory process--Washington v. Texas, 388 U.S. 14 (1967).
        Counsel--Powell v. Alabama, 287 U.S. 45 (1932); Gideon v.
Wainwright, 372 U.S. 335 (1963).
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      Eighth Amendment--
        Cruel and unusual punishment--Louisiana ex rel. Francis v.
Resweber, 329 U.S. 459 (1947); Robinson v. California, 370 U.S. 660
(1962).
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      Provisions not applied are:
      Second Amendment--
        Right to keep and bear arms--Cf. United States v. Cruikshank, 92
U.S. 542, 553 (1876); Presser v. Illinois, 116 U.S. 252, 265 (1886).
---------------------------------------------------------------------------
      Third Amendment--
        Quartering troops in homes--No cases.
---------------------------------------------------------------------------
      Fifth Amendment--
        Grand Jury indictment--Hurtado v. California, 110 U.S. 516
(1884).
---------------------------------------------------------------------------
      Seventh Amendment--
        Jury trial in civil cases in which value of controversy exceeds
$20--Cf. Adamson v. California, 332 U.S. 46, 64-65 (1947) (Justice
Frankfurter concurring). See Minneapolis & St. L. R.R. v. Bombolis, 241
U.S. 211 (1916).
---------------------------------------------------------------------------
      Eighth Amendment--
        Bail--But see Schilb v. Kuebel, 404 U.S. 357, 365 (1971).
        Excessive Fines--But see Tate v. Short, 401 U.S. 395 (1971)
(utilizing equal protection to prevent automatic jailing of indigents
when others can pay a fine and avoid jail).

---------------------------------------------------------------------------

[[Page 963]]

        Aside from the theoretical and philosophical considerations
which enter into the question whether the Bill of Rights is incorporated
into the Fourteenth Amendment or whether due process subsumes certain
fundamental rights which may be named in the Bill of Rights, the
principal relevant controversy is whether, once a guarantee or a right
set out in the Bill of Rights is held to be a limitation on the States,
the same standards which restrict the Federal Government restrict the
States. The majority of the Court has consistently held that the
standards are identical, whether the Federal Government or a State is
involved,\38\ and ``has rejected the notion that the Fourteenth
Amendment applies to the State only a `watered-down, subjective version
of the individual guarantees of the Bill of Rights.'''\39\ Those who
have argued for the application of a dual-standard test of due process
as between the Federal Government and the States, most notably Justice
Harlan,\40\ but includ

[[Page 964]]
ing Justice Stewart,\41\ Justice Fortas,\42\ Justice Powell,\43\ and
Justice Rehnquist,\44\ have not only based their contentions on a
rejection of actual incorporation but upon the ground as well that if
the same standards are to apply the standards previously developed with
the Federal Government in mind will have to be diluted in order to give
the States more leeway in the operation of their criminal justice
systems.\45\ The latter result seems to have developed with regard to
issues surrounding the interpretation of the jury trial guarantee of the
Sixth Amendment.\46\

        \38\Malloy v. Hogan, 378 U.S. 1, 10-11 (1964); Ker v.
California, 374 U.S. 23 (1963); Griffin v. California, 380 U.S. 609
(1965); Baldwin v. New York, 399 U.S. 66 (1970); Williams v. Florida,
399 U.S. 78 (1970); Ballew v. Georgia, 435 U.S. 223 (1978); First
National Bank of Boston v. Bellotti, 435 U.S. 765, 780 n.16 (1978)
(specifically the First Amendment speech and press clauses); Crist v.
Bretz, 437 U.S. 28 (1978); Burch v. Louisiana, 441 U S. 130 (1979).
        \39\Williams v. Florida, 399 U.S. 78, 106-107 (1970) (Justice
Black concurring in part and dissenting in part), quoting Malloy v.
Hogan, 378 U.S. 1, 10-11 (1964).
        \40\Justice Harlan first took this position in Roth v. United
States, 354 U.S. 476, 496 (1957) (concurring in part and dissenting in
part). See also Ker v. California, 374 U.S. 23, 45-46 (1963)
(concurring). His various opinions are collected in Williams v. Florida,
399 U.S. 78, 129-33 (1970) (concurring in part and dissenting in part).
        \41\Williams v. Florida, 399 U.S. 78, 143-45 (1970) (concurring
in part and dissenting in part); Duncan v. Louisiana, 391 U.S. 145, 173-
83 (1968) (Justices Harlan and Stewart dissenting). But see Apodaca v.
Oregon, 406 U.S. 404, 414 (1972) (dissenting). See also Crist v. Bretz,
437 U.S. 28 (1978) (Justice Stewart writing opinion of the Court).
        \42\Bloom v. Illinois, 391 U.S. 194, 211 (1968) (concurring).
        \43\Johnson v. Louisiana, 406 U.S. 356, 366 (1972) (concurring);
Crist v. Bretz, 437 U.S. 28, 52-53 (1978) (dissenting, joined by Chief
Justice Burger and Justice Rehnquist). But see First National Bank of
Boston v. Bellotti, 435 U.S. 765, 780 n.16 (1978) (rejecting theory in
First Amendment context in opinion for the Court, joined by Chief
Justice Burger).
        \44\Buckley v. Valeo, 424 U.S. 1, 290 (1976) (concurring in part
and dissenting in part); First National Bank of Boston v. Bellotti, 435
U.S. 765, 822 (1978) (dissenting). See also Crist v. Bretz, 437 U.S. 28,
52-53 (1978) (joining Justice Powell's dissent). Justice Jackson was
also apparently of this view. Beauharnais v. Illinois, 343 U.S. 250, 288
(1952) (dissenting).
        \45\E.g., Williams v. Florida, 399 U.S. 78, 129-38 (1970)
(Justice Harlan concurring in part and dissenting in part); Bloom v.
Illinois, 391 U.S. 194, 213-215 (1968) (Justice Fortas concurring). But
see Williams v. Florida, supra, 106-08 (Justice Black concurring in part
and dissenting in part).
        \46\Williams v. Florida, 399 U.S. 78 (1970); Apodaca v. Oregon,
406 U.S. 404 (1972). But cf. Ballew v. Georgia, 435 U.S. 223 (1978).