Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The Supreme Court ruled in Cantwell v. Connecticut, 1940, – “1. The fundamental concept of liberty embodied in the Fourteenth Amendment embraces the liberties guaranteed by the First Amendment.” No reasoning is set out for the basis of this position, but it is simply stated. Then, the Court rules – 2. The enactment by a State of any law respecting an establishment of religion or prohibiting the free exercise thereof is forbidden by the Fourteenth Amendment. 3. Under the constitutional guaranty, freedom of conscience and religious belief is absolute....”
How did it come about 73 years after the 14th Amendment was passed, that it was held as applying the Establishment and Free Exercise Clauses of the First Amendment against the states? Actually, the answer to this question requires another topic thread with many posts to examine all the issues, litigation, and history involved. However, at this time I will try to set out a basic review as an introduction to the relevant background and cases. I will break this analysis down into two posts, according to a logical division of the concepts involved.
Two lines of reasoning on the proper interpretation of the 14th Amendment were developed over the history of cases arising for review by the Court. Initially, the Court held the 14th Amendment was clearly intended to prevent hostile discrimination against African-Americans and the denial of equal protection before the law for former slaves. The main purpose of the Amendment was to overturn the Dred Scott case and establish citizenship for black people. Neither the Privileges and Immunities Clause, nor the Due Process Clause, of the 14th Amendment created rights for citizens, but the intent of Congress was merely to guarantee that the law will be applied equally and without discrimination on all rights arising from legislation, common law, or Natural Law – referring to inalienable rights endowed by their creator, as the Declaration of Independence says. However, there was some dissent in these early cases, that the 14th Amendment, in fact, did apply the Bill of Rights against the states for all citizens, and as well secured rights established by Natural Law, according to our English legal heritage.
However, beginning with Chicago, Burlington & Quincy Railroad v. Chicago, 1897, the Court distinguished between procedural and substantive due process of law. The Court ruled that confiscation of property for the public good according to legislation that procedurally eliminates compensation to the owner violates due process of law in substance. Then, in Allgeyer v. Louisiana, 1897, the Court held that legislation that prohibits citizens to enter a contract violates their right to liberty under the Due Process Clause of the 14th Amendment. However, with ensuing decisions, the Court did not find all the rights of the first ten amendments applied against the states for protection under the 14th Amendment, but only those rights arising from Natural Law, liberties that are fundamental, immutable, inalienable under a free government. However, Justice Cardozo referred to these rights in Palko v. Connecticut, 1937, as coming from “the very essence of a scheme of ordered liberty.”
The concept of holding that all of the first ten amendments apply to the states through the 14th Amendment is known as “entire incorporation;” while specifying that only certain of these rights come under protection is called “selective incorporation.”
Case Review on Historical Background and Non-Incorporation
First, it should be noted that originally the Supreme Court definitively held that the Bill of Rights was not binding on the states, but was a restraint upon the federal government, in the historic case of Barron v. Baltimore, 1833. In 1815 John Barron and John Craig purchased a deep water wharf and warehouse at Baltimore harbor. Construction in the area was associated with excavation and landscaping by the City of Baltimore, which changed water runoff, causing sand and mud to fill the harbor in front of the wharf. Barron and Craig requested the dredging of the harbor by the wharf at city expense, but without receiving a response. In bringing litigation and on appeal, the wharf owners charged that their Fifth Amendment rights were abridged, that property cannot be taken for public use without just compensation, and eventually the case arrived at the Supreme Court, as the country's first Bill of Rights case. Chief Justice Marshall did not even allow the presentation of an opposing argument by the city, in the Court's ruling that the Fifth Amendment was not binding on states, as it must be understood as a restraining power on the federal government. Marshall noted that if “the framers of these amendments intended them to be limitations on the powers of state governments, they would have... expressed that intention.”
However, another historic case by the Court created an outrage in the nation, which led to the Civil War, and which eventually would focus attention on how the liberties of the Bill of Rights should affect individual citizens. Dred Scott v. Sandford, 1857, made a ruling that Negro slaves were not citizens and were not entitled to the rights, privileges, and immunities guaranteed by the Constitution.
In 1832, Dr. John Emerson, a resident of Missouri, a slave state, purchased Dred Scott. In 1833, Dr. Emerson reported for duty at Ft. Armstrong, Illinois, a free state, taking Dred Scott with him. In 1836, Dr. Emerson was transferred to Ft. Snelling, Minnesota, a part of the Wisconsin Territory, where slavery was prohibited by the Missouri Compromise. Due to ill health in cold weather, Dr. Emerson transferred to Ft. Jesup, Louisiana, but Dred Scott remained at Ft. Snelling until 1838. After Dr. Emerson made another brief stay at Ft. Snelling, he and Dred Scott eventually returned to St. Louis, Missouri. Dr. Emerson died in 1843, and his wife hired out Dred Scott. In 1846, he sued for his freedom, asserting he was no longer a slave, having lived in free territory. He may have been assisted in bringing the litigation, by others desiring to set up a test case on slavery, or lawyers seeking a large settlement for back wages.
After many years of litigation, the case was decided by the Supreme Court, with Roger Brooke Taney as Chief Justice, the lawyer representing the city of Baltimore in the Barron case. The Court ruled,
-- that a Negro, whose ancestors were imported into the country and sold as slaves, could not become part of the political community created by the Constitution and were not entitled to the rights, privileges, and immunities guaranteed this document to the country's citizens. The Negro race had been regarded as inferior for more than a century, was unfit to associate with the white race, and had no rights. Thus, Negroes were not citizens and could not sue in a federal court;
-- that as soon as Dred Scott returned to Missouri, its laws were controlling, and he was not a citizen in that state but a slave;
-- that the Missouri Compromise of 1820 was unconstitutional, as no person could be deprived of life, liberty, and property by the federal government without due process of law, according to the Fifth Amendment. To hold that property that is removed to a particular Territory of the United States is forfeited does not satisfy due process of law.
As an example of this principle, the Court noted that no one would presume that Congress could make laws in a Territory respecting the establishment of a religion, or the free exercise thereof, or abridging the freedom of speech or the press, or the right of people to peaceably assemble or petition or the government for redress of grievances. Congress also cannot deny the right of the person to keep and bear arms, nor to a trail by jury, nor to refrain from being a witness against oneself in a criminal proceeding. The right to private property is protected by the Constitution with equal care. In the same manner, Congress cannot make a law to quarter a soldier in a house in a Territory without the consent of the owner, except in a manner prescribed by law; nor to forfeit the property of a person convicted of treason, for a period longer than that person's life; nor to take private property for public use without just compensation. Slaves are as much property as any other described form.
Five of the nine justices on the Court were southern. A few weeks after the decision, Dred Scott was manumitted. Four years later, Chief Justice Taney gave Abraham Lincoln the oath of office for the presidency.
However, in 1865 the 13th Amendment passed abolishing slavery, and involuntary servitude. Then, southern states passed “black codes,” which in essence attempted to re-institute slavery, specifying blacks could not have firearms, assemble after sunset, take on types of employment, enter into a business, etc. In April 1866 Congress passed The Civil Rights Act to ensure equality of rights for all citizens as a counter measure to these codes. However, to deal with objections raised regarding the Act and to place the common rights of all citizens under the national government, the 14th Amendment was passed in 1868.
The meaning of the language of Section 1 of the Amendment was brought before the Court in the Slaughterhouse Cases, 1872. In order to curb rampant disease from unsanitary butchering practices, the city of New Orleans granted a monopoly for 25 years to a single grand slaughterhouse. 400 members of the Butcher's Benevolent Association sued to prevent the takeover of the industry. They alleged that the statute created involuntary servitude contrary to the 13th Amendment, abridged the privileges and immunities of citizens of the United States, denied the owners of the other slaughterhouses equal protection of the laws, and deprived them of their property without due process of law, contrary to Section 1 of the 14th Amendment.
The Court held that a state's right to grant a monopoly was not forbidden by the 13th Amendment, and an examination of the history of the reasons for adopting the 13th and 14th Amendments clearly indicated the causes of the freedom of the African race and of protection from the oppressions of white men who formerly held them in slavery.
The first clause of the fourteenth article was primarily intended to confer citizenship on the negro race, and secondly to give definitions of citizenship of the United States and citizenship of the States, and it recognizes the distinction between citizenship of a State and citizenship of the United States by those definitions...
The clause which forbids a State to deny to any person the equal protection of the laws was clearly intended to prevent the hostile discrimination against the negro race so familiar in the States where he had been a slave, and, for this purpose, the clause confers ample power in Congress to secure his rights and his equality before the law...
It declares that persons may be citizens of the United States without regard to their citizenship of a particular State, and it overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States. That its main purpose was to establish the citizenship of the negro can admit of no doubt.
The Court noted that Section 1. clearly distinguishes between a citizen of the United States and a citizen of a state. The prohibition against abridging the privileges and immunities applies to citizens of the United States, not of a state; and therefore, the intent is not to protect the citizen of a state against its legislative power.
However, Justice Field in dissenting stated that in his judgment the 14th Amendment did protect citizens from denial of rights by state legislation, which included those of the Bill of Rights, and further that the Amendment did not distinguish between federal and state citizenship, but set out how citizenship was established.
Justice Field asserted that the language of Section 1. made being a citizen of a state the basis of being a federal citizen, an issue that was debated before the Amendment's passage. He then notes the terms “privileges” and “immunities” are found in the second section of the Fourth Amendment, “which declares 'the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.'” He cited precedent in noting that those privileges and immunities are more tedious than difficult to enumerate but include the right to life, liberty, property, and to pursue and obtain happiness and safety. In short, the privileges are those that belong to the citizens of all free governments. As the Fourth Amendment protects the citizen of one state to enjoy these privileges in all states, and no discrimination can be made in favor of a citizen of a state and against a citizen of another state, so also the 14th Amendment protects the equality of these privileges between all federal citizens. Therefore, as the Fourth Amendment would protect the citizens of other states against a monopoly, so does the 14th Amendment protect federal citizens against legalized monopolies.
In United States v. Cruikshank, 1875, the Court affirmed and expanded on the Slaughterhouse decision. The case arose from an incident known as the Colfax Massacre. After a disputed election in Louisiana in 1872, a group of armed black men assembled at the Colfax courthouse, taking it over. They were attacked by a band of whites, led by William Cruikshank, who burned down the courthouse, with over 100 of the blacks being killed, most after surrender. Cruikshank and other defendants were convicted of depriving the blacks of their Constitutional rights to peaceably assemble for a lawful purpose and to bear arms.
In reviewing the conviction, the Court noted citizenship arises from being a part of a political community, and as there are both state and national governments, the same person may be a citizen of each at the same time, the one distinct from the other, with differing rights pertaining to each. The national government can only grant rights and privileges under its jurisdiction, leaving matters outside its purview to the states.
The Court considered whether Cruikshank and the others hindered the right of citizens to peaceably assemble for a peaceful and lawful purpose granted by the Constitution. The Court found that the right to assemble for a lawful purpose existed before the Constitution and is an attribute of citizenship under a free government. No such right was granted by the Constitution, but the First Amendment prohibits Congress from abridging “the right of the people to assemble and to petition the government for redress of grievances.”
The Court considered whether Cruikshank and the others hindered the right of citizens to bear arms for a lawful purpose. Again, the Court found the right to bear arms is not granted by the Constitution, but the Second Amendment declares that the right to bear arms shall not be infringed by Congress.
The Court considered whether Cruikshank and the others deprived citizens “of their respective several lives and liberty of person without due process of law...” The Court found these rights do not arise from the Constitution, but they are, as the Declaration of Independence say, “unalienable rights with which they were endowed by their Creator,” or that is, they arise from Natural Law. However, the 14th Amendment does not add to the right of one citizen against another, but it guarantees that the States will apply the law on rights equally, without discrimination.
The third and eleventh counts are even more objectionable. They charge the intent to have been to deprive the citizens named, they being in Louisiana, "of their respective several lives and liberty of person without due process of law." This is nothing else than alleging a conspiracy to falsely imprison or murder citizens of the United States, being within the territorial jurisdiction of the State of Louisiana. The rights of life and personal liberty are natural rights of man. "To secure these rights," says the Declaration of Independence, "governments are instituted among men, deriving their just powers from the consent of the governed." The very highest duty of the States, when they entered into the Union under the Constitution, was to protect all persons within their boundaries in the enjoyment of these "unalienable rights with which they were endowed by their Creator." Sovereignty, for this purpose, rests alone with the States. It is no more the duty or within the power of the United States to punish for a conspiracy to falsely imprison or murder within a State, than it would be to punish for false imprisonment or murder itself.
The Fourteenth Amendment prohibits a State from depriving any person of life, liberty, or property without due process of law, but this adds nothing to the rights of one citizen as against another. It simply furnishes an additional guaranty against any encroachment by the States upon the fundamental rights which belong to every citizen as a member of society...
The Fourteenth Amendment prohibits a State from denying to any person within its jurisdiction the equal protection of the laws; but this provision does not, any more than the one which precedes it, and which we have just considered, add anything to the rights which one citizen has under the Constitution against another. The equality of the rights of citizens is a principle of republicanism. Every republican government is in duty bound to protect all its citizens in the enjoyment of this principle, if within its power. That duty was originally assumed by the States, and it still remains there. The only obligation resting upon the United States is to see that the States do not deny the right. This the amendment guarantees, but no more. The power of the national government is limited to the enforcement of this guaranty.
No question arises under the Civil Rights Act of April 9, 1866 (14 Stat. 27), which is intended for the protection of citizens of the United States in the enjoyment of certain rights, without discrimination on account of race, color, or previous condition of servitude, because, as has already been stated, it is nowhere alleged in these counts that the wrong contemplated against the rights of these citizens was on account of their race or color.
The charges in Cruikshank were brought under the sixth section of the Enforcement Act of 1870, which guaranteed the right to vote without distinction to race, and which made a felony of injuring, oppressing, threatening, or intimidating any citizen with “intent to prevent and hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the Constitution or laws of the United States.”
The 15th Amendment invested citizens of the United States a right to exemption from discrimination on the elective franchise of voting on the account of race, color, or previous condition of servitude. “The right to vote in States comes from the States, but he right of exemption from prohibited discrimination comes from the United States.” It was not the intent of Cruikshank and the defendants to hinder voting based on race, and it was not averred in legal proceedings that race was the cause of the hostility. The incident was nothing more than a breach of peace within a state, and it is a state's responsibility to protect itself against domestic violence.
Thus, the Court held that in the case it was nowhere alleged that the reviewed rights were hindered based on race, color, or previous condition of servitude, and wherein discrimination actually was alleged, there was no specification of the violation of a particular right. Thus, the Court indicated that the case was not properly brought and set out by the United States.
In Hurtado v. California, 1884, Joseph Hurtado fatally shot his wife's lover. He was brought to trail according to the provisions of the California Constitution, which made an indictment by a grand jury unnecessary, in place of an information standard. After being sentenced to death, he appealed to the Supreme Court, contending that the Fifth Amendment requirement of indictment by a grand jury applied to the states through the 14th Amendment's Due Process of Law Clause.
Hurtado contended that the phrase “due process of law” is equivalent to “law of the land,” as found in the 29th chapter of the Magna Carta, and by immemorial usage the concept includes “general principles of public liberty and private right which lie at the foundation of all free government,” transplanted from England to the colonies and established in the fundamental laws of the states.
The Court held that “due process of law” merely referred to the law of the land, as derived by the authority of the state legislature, interpreted according to principles of common law. The people of the state have the right to make their own laws, to alter them at their pleasure, and to decide what influence the tradition of an English legal heritage should have on their particular circumstances. The 14th Amendment did not guarantee the right to a grand jury and makes no declaration regarding the embodiment of such a right from the Fifth Amendment. Therefore, Hurtado's right to due process of law had not been violated.
Justice Harlan in dissenting noted that the phrase “due process of law” is not new in America or England and antedates the establishment of our institutions. Those driven from the mother country brought with them as their inheritance certain guarantees of the rights of life, liberty, and property, fundamental to Anglo-Saxon institutions. The Congress of the Colonies asserted that the people were entitled to the rights, liberties, privileges, and immunities confirmed by the Magna Carta, and to the full possession of such rights as held by all Englishmen, according to immutable laws. These fundamental doctrines were incorporated into the Constitution of the United States. The similarity of the language in the Fifth and 14th Amendments was no accident, “no person shall be deprived of life, liberty, or property, without due process of law,” but evinced “a purpose to impose upon the States the same restrictions.”
In Presser v. Illinois, 1886, the Court reaffirmed Cruikshank in holding that the Constitution does not grant the right to bear arms, but the Second Amendment protects against Congress infringing on such right. In Miller v. Texas, 1894, the Court again reaffirmed Cruikshank regarding the Second Amendment, as well as the Slaughterhouse cases in general.