You are reading the appendix to"The 37th Amendment," a novel by Susan Shelley.  Copyright 2002.  All rights reserved.  This material may not be republished, retransmitted, printed, copied or distributed in any manner, in whole or in part, without the written consent of the author.  Permission is granted for publication of short excerpts in the context of a review or commentary, provided the material is appropriately credited. 
How the First Amendment Came to Protect Topless Dancing
A History of the
Incorporation of the Bill of Rights
into the Fourteenth Amendment,
Why It's a Problem,
and How to Fix It
By Susan Shelley

Copyright 2002 

Part III

(If you missed the beginning and want to start at the top, click here)

(This essay is the appendix to The 37th Amendment, a novel by Susan Shelley. Available at,, and wherever books are sold, or read it online by clicking here.)

Continued from Part II

It certainly appears that on the issue of racial equality, the political climate in America had not changed much in the 95 years since Abraham Lincoln had declared himself to be in favor of white supremacy. Perhaps the country never would have changed if the Supreme Court had not acted as it did in 1954, putting the force of law behind what previously had been a moral and social-sciences argument.119 But in stepping beyond its constitutional boundaries to right society's wrongs, the Warren Court ran straight into Alexander Hamilton's 1788 warning: 

[E]very breach of the fundamental laws, though dictated by necessity...forms a precedent for other breaches where the same plea of necessity does not exist at all, or is less urgent and palpable.120 

The Court began citing the Brown decision as a precedent the very same day. In order to desegregate the schools in the District of Columbia, the justices needed more than the Fourteenth Amendment's equal protection clause. The Fourteenth Amendment applies only to the states, and the nation's capital is not a state, but is under the direct control of Congress. The Fifth Amendment applies to the Congress, but it doesn't have an equal protection clause. What to do? 

Here's what they did: In the case of Bolling v. Sharpe, Chief Justice Warren wrote for the Court, 

In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government. We hold that racial segregation in the public schools of the District of Columbia is a denial of the due process of law guaranteed by the Fifth Amendment to the Constitution.121 

There can be no question that up until that very moment, "due process of law" under the Fifth Amendment did not mean racial segregation was unconstitutional. As the late Chief Justice Vinson had pointed out, Congress had maintained segregated schools in the District of Columbia for 90 years, and the courts had not found it to be a violation of the Constitution, whatever anyone might have thought of it as a policy. The Warren Court had opened the door to a far more expansive view of due process than Alexander Hamilton would have recognized when he assured the New York Assembly in 1787, 

The words 'due process' have a precise technical import, and are only applicable to the process and proceedings of the courts of justice; they can never be referred to an act of legislature.122 

By 1949, Hamilton's original understanding had given way to this definition from Justice Felix Frankfurter: 

Due process of law...conveys neither formal nor fixed nor narrow requirements. It is the compendious expression for all those rights which the courts must enforce because they are basic to our free society....It is of the very nature of a free society to advance in its standards of what is deemed reasonable and right.123 

Justice Frankfurter's interpretation of due process was not as expansive as it sounds. He set forth this understanding in his opinion for the Court in the case of Wolf v. Colorado, in which the Court held that a federal rule requiring the exclusion of illegally-obtained evidence from criminal trials did not apply in state courts. Frankfurter wrote: 

[T]he Fourteenth Amendment did not subject criminal justice in the States to specific limitations. The notion that the 'due process of law' guaranteed by the Fourteenth Amendment is shorthand for the first eight amendments of the Constitution and thereby incorporates them has been rejected by this Court again and again, after impressive consideration....The issue is closed.124 

Well, the issue was closed. 

In 1961, the Supreme Court heard the case of Dollree Mapp, a black woman who had been charged with possessing obscene materials after Cleveland police, acting on a tip, broke into her home to search for a fugitive bombing suspect believed to be hiding in her basement. They found no fugitive but they did find some pornographic materials, and although the police had no warrant to search for pornography in Dolly Mapp's basement, she was convicted and sentenced to a year in the Ohio women's reformatory.125 

When the Supreme Court justices met in their conference on March 31 to discuss the Mapp case, they agreed that the conviction should be overturned. The focus of the case was the validity of Ohio's law banning the possession of obscene material. The justices agreed that the law was not consistent with the First Amendment's protection of freedom of speech, one of the fundamental rights that the Court had said (since 1925) was applicable to the states through the Fourteenth Amendment.126 

Justice William O. Douglas said he thought the case presented a good opportunity to re-open the issue that Justice Frankfurter had pronounced "closed" in 1949: the admissibility of illegally-obtained evidence in state courts. Although Chief Justice Warren and Justice William Brennan agreed with him, the majority of justices did not, and the opinion was assigned to Justice Tom Clark with the expectation that the conviction would be reversed on First Amendment grounds.127 

However, after the conference, Justice Clark decided he agreed with Justice Douglas that evidence obtained illegally ought not to be admissible in a state court. He circulated a draft opinion expressing that view, which Justice Brennan called "magnificent and wonderful."128 Justice Hugo Black said he would join the opinion,129 making a majority of five justices willing to overrule Justice Frankfurter's opinion in Wolf v. Colorado that "in a prosecution in a State court for a State crime the Fourteenth Amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure."130 

Justice Potter Stewart was not happy. He wrote to Justice Clark, 

The idea of overruling Wolf...was not even discussed at the Conference, where we all agreed, as I recollect it, that the judgment should be reversed on First Amendment grounds. If Wolf is to be reconsidered, I myself would much prefer to do so only in a case that required it, and only after argument of the case by competent counsel and a full Conference discussion.131 

Justice John Marshall Harlan, grandson of the first Justice Harlan, also was not happy. "If you don't mind my saying so," he wrote to Clark in a handwritten postscript to a formal letter, "your opinion comes perilously close to accepting 'incorporation' for the Fourth A., and will doubtless encourage the 'incorporation' enthusiasts."132 

Justice Clark wrote back and denied "that the opinion is a windfall to 'incorporation' enthusiasts."133 

Justice Black, the "'incorporation' enthusiast" to whom they were referring, wrote to Justice Clark to complain about the phrase in the opinion reading, "the Fourth Amendment's right of privacy has been declared enforceable against the States through the Due Process Clause of the Fourteenth." Black wrote, 

My agreement to your opinion depends upon my understanding that you read Wolf as having held, and that we are holding here, that the Fourth Amendment as a whole is applicable to the States and not some imaginary and unknown fragment designated as the 'right of privacy.'134 

Justice Clark wrote back, 

The gist of the opinion is that Wolf held the entire Fourth Amendment to be carried over against the states through the Fourteenth, and therefore the exclusionary rule...must likewise be made applicable to state prosecutions.135 

Let's stop and take a good, long look at this. The justices of the Supreme Court are having a private discussion of an opinion that is about to turn the Constitution of the United States upside down, requiring every state court in America to determine if police procedures in the gathering of evidence were legal under the U.S. Supreme Court's latest Fourth Amendment rulings, requiring the exclusion of evidence that was not gathered in a manner that meets this evolving test, perhaps resulting in acquittals for defendants who are guilty and would otherwise have been convicted.136 

It's a private debate behind closed doors. No elected officials have been invited to participate in the making of this far-reaching new policy. No hearings have been held to permit citizens, police officers, or state court judges to present their views. No journalists are present to inform the public of the issues under consideration. The justices are about to reverse the constitutional structure that for 172 years has held control of state criminal law and procedures to be part of the police power reserved to the states. They are about to reject the express terms of the Tenth Amendment ("The powers not delegated to the United States by the Constitution...are reserved to the States....") in favor of the judicially-created "incorporation" doctrine that says some parts of the Bill of Rights are applicable to the states through the Fourteenth Amendment. 

The decision in Mapp v. Ohio was handed down on June 19, 1961: 

All evidence obtained by searches and seizures in violation of the Federal Constitution is inadmissible in a criminal trial in a state court. Wolf v. Colorado [is] overruled insofar as it holds to the contrary.137 

Criminal justice in the United States has never been the same. And only nine Americans got to vote on it. 

When the Constitution was under consideration, Alexander Hamilton told the New York Ratification Convention, "the States have certain independent powers, in which their laws are supreme, for example, in making and executing laws concerning the punishment of certain crimes, such as murder, theft, etc., the States cannot be controlled."138 Did the Fourteenth Amendment change that? House Judiciary Committee Chairman James Wilson assured the 39th Congress at the time, "We are not making a general criminal code for the states."139 Yet by its decision in Mapp v. Ohio, the Supreme Court gave itself the power to set policy for evidence-gathering in every state and local jurisdiction across the country, with the penalty for violating that policy the mandatory exclusion of the evidence, even at the cost of setting a guilty defendant free. 

The question is not whether it is a good idea or a bad idea to exclude illegally-obtained evidence from a trial or authorize a search on the basis of an anonymous tip. The question is who decides if illegally-obtained evidence is excluded or if an anonymous tip is sufficient for a search. The Fourth Amendment prohibits "unreasonable" searches and seizures. What the Supreme Court did in the Mapp case was declare itself to be the only authority in the nation empowered to determine what is reasonable. 

No wonder the Court's workload was increasing.140 

You are reading the appendix to"The 37th Amendment," a novel by Susan Shelley.  Copyright 2002.  All rights reserved.  This material may not be republished, retransmitted, printed, copied or distributed in any manner, in whole or in part, without the written consent of the author.  Permission is granted for publication of short excerpts in the context of a review or commentary, provided the material is appropriately credited.

In 1963 the Warren Court ruled that defendants in all state criminal trials--not just capital cases--were entitled to the assistance of a lawyer, and that if they could not afford to hire a lawyer, the state must provide one at taxpayer expense. Today this is accepted virtually without question, yet at the time it was settled law that the states had the power to determine for themselves whether to provide attorneys to impoverished defendants in criminal trials. In the 1942 case of Betts v. Brady, Justice Owen Roberts noted that "the Sixth Amendment applies only to trials in federal courts."141 The Fourteenth Amendment did prohibit state trials that were "offensive to the common and fundamental ideas of fairness and right," Justice Roberts acknowledged, but did it prohibit any trial for any crime in any court unless the defendant was represented by counsel? No, the Court ruled, it did not.142 

The Warren Court overruled Betts v. Brady and held: 

The right of an indigent defendant in a criminal trial to have the assistance of counsel is a fundamental right essential to a fair trial....143 

In 1964, the Court overruled Twining v. New Jersey and Adamson v. California and held: 

The Fourteenth Amendment prohibits state infringement of the privilege against self-incrimination just as the Fifth Amendment prevents the Federal Government from denying the privilege.144 

In 1966, the Court held in the case of Miranda v. Arizona145 that the privilege against self-incrimination, applied to the states by the Court just two years earlier, must extend beyond the courtroom and into the police station. People who were arrested, the Court declared, had a constitutional right to be "clearly informed" of their right to remain silent and their right to an attorney. Police officers who failed to read suspects their "Miranda rights"146 would see the evidence from their interrogations tossed out in court. 

In 1968, the Court did in the case of Duncan v. Louisiana147 what James Madison had been unable to do in 1789: require the states to provide trial-by-jury to defendants in all criminal cases, just as the Sixth Amendment would require if the cases were in federal court. "[T]rial by jury in criminal cases is fundamental to the American scheme of justice," the Court declared, and therefore applicable to the states through the Fourteenth Amendment.148 

It was exactly 100 years since the Fourteenth Amendment had been ratified. Would its framers have recognized it? Listen to Justice Byron White, writing for the Court:149 

[T]he Due Process Clause of the Fourteenth protects the right to compensation for property taken by the State;150 the rights of speech, press, and religion covered by the First Amendment;151 the Fourth Amendment rights to be free from unreasonable searches and seizures and to have excluded from criminal trials any evidence illegally seized;152 the right guaranteed by the Fifth Amendment to be free of compelled self-incrimination;153 and the Sixth Amendment rights to counsel,154 to a speedy155 and public156 trial, to confrontation of opposing witnesses,157 and to compulsory process for obtaining witnesses.158 

It's pretty clear that the framers' original intent has become less than a wisp of memory. Would there be any limit to the new powers over state law which the Court could derive from the Fourteenth Amendment's due process clause? 

Consider the case of Griswold v. Connecticut

In 1965, the United States Supreme Court struck down a Connecticut law banning birth control. The Court held, "The Connecticut statute forbidding use of contraceptives violates the right of marital privacy which is within the penumbra of specific guarantees of the Bill of Rights."159 

A constitutional right to marital privacy? Where did that come from? 

Justice William O. Douglas wrote in his opinion for the Court, 

[S]pecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."160 

Whoa. Let's stop and take a look at this. The Supreme Court just struck down a state law on the grounds that it conflicts with penumbras formed by emanations from the Bill of Rights. The Bill of Rights, which sixty-five years earlier didn't even apply to the states, now has grown a vast outer ring of rights which the Supreme Court will not permit the states to abridge. 

Can that be right? 

Not everyone on the Court thought so. 

"I have not accepted the view that 'due process' as used in the Fourteenth Amendment incorporates all of the first eight Amendments," Justice Arthur J. Goldberg wrote.161 

"For me this is just as unacceptable constitutional doctrine as is the use of the 'incorporation' approach to impose upon the States all the requirements of the Bill of Rights," wrote Justice Harlan.162 

And those are the concurring opinions. 

In dissent, Justice Stewart, joined by Justice Black, wrote, 

I think this is an uncommonly silly law....But we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do.163 

And further, 

What provision of the Constitution...make[s] this state law invalid? The Court says it is the right of privacy "created by several fundamental constitutional guarantees." With all deference, I can find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court.164 

Justice Stewart concludes, 

At the oral argument in this case we were told that the Connecticut law does not "conform to current community standards." But it is not the function of this Court to decide cases on the basis of community standards. We are here to decide cases "agreeably to the Constitution and laws of the United States." It is the essence of judicial duty to subordinate our own personal views, our own ideas of what legislation is wise and what is not. If, as I should surely hope, the law before us does not reflect the standards of the people of Connecticut, the people of Connecticut can freely exercise their true Ninth and Tenth Amendment rights to persuade their elected representatives to repeal it. That is the constitutional way to take this law off the books.165 

What reasoning did the majority use to strike down the Connecticut law? 

Well, you already heard about the penumbras. 

Three of the justices in the majority--Justice Goldberg, joined by Chief Justice Warren and Justice Brennan--cited the Gitlow case from 1925, which stated that freedom of speech was among "the fundamental personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the States." Justice Goldberg reasoned that marital privacy couldn't be any less fundamental than freedom of speech: 

To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever.166 

This reference to the Ninth Amendment appears to annoy Justice Stewart. He writes: 

[T]o say that the Ninth Amendment has anything to do with this case is to turn somersaults with history. The Ninth Amendment...was framed by James Madison and adopted by the States simply to make clear that the adoption of the Bill of Rights did not alter the plan that the Federal Government was to be a government of express and limited powers, and that all rights and powers not delegated to it were retained by the people and the individual States. Until today no member of this Court has ever suggested that the Ninth Amendment meant anything else, and the idea that a federal court could ever use the Ninth Amendment to annul a law passed by the elected representatives of the people of the State of Connecticut would have caused James Madison no little wonder.167 

Justice Goldberg answers: 

The Ninth Amendment simply shows the intent of the Constitution's authors that other fundamental personal rights should not be denied such protection or disparaged in any other way simply because they are not specifically listed in the first eight constitutional amendments....Nor am I turning somersaults with history in arguing that the Ninth Amendment is relevant in a case dealing with a State's infringement of a fundamental right.168 

You can determine for yourself whether Justice Goldberg is turning somersaults. We're just getting to the heart of his argument: 

In a long series of cases this Court has held that where fundamental personal liberties are involved, they may not be abridged by the States simply on a showing that a regulatory statute has some rational relationship to the effectuation of a proper state purpose. "Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling."169 The law must be shown "necessary, and not merely rationally related, to the accomplishment of a permissible state policy."170 

There it is, in nearly-plain language. The U.S. Supreme Court has decided that when a personal liberty is fundamental, a state may not pass a law restricting it unless the state can show a compelling reason that the law is necessary in order to accomplish a permissible state policy. 

The Supreme Court will decide if the liberty in question is or is not fundamental

The Supreme Court will decide if the state's reason for the law is compelling, or merely rational. 

The Supreme Court will decide if the law is necessary to accomplish the state's policy. 

The Supreme Court will decide if the state's policy is permissible

And now, thanks to emanations, penumbras and a brand-new Ninth Amendment interpretation, the number of fundamental liberties to be protected this way is no longer limited to the specific guarantees in the Bill of Rights, but is infinite. 

Justice Black doesn't like it: 

I do not believe that we are granted power by the Due Process Clause or any other constitutional provision or provisions to measure constitutionality by our belief that legislation is arbitrary, capricious or unreasonable, or accomplishes no justifiable purpose, or is offensive to our own notions of "civilized standards of conduct." Such an appraisal of the wisdom of legislation is an attribute of the power to make laws, not of the power to interpret them. The use by federal courts of such a formula or doctrine or whatnot to veto federal or state laws simply takes away from Congress and States the power to make laws based on their own judgment of fairness and wisdom and transfers that power to this Court for ultimate determination--a power which was specifically denied to federal courts by the convention that framed the Constitution.171 

Justice Black went on to relate the short history of the Council of Revision, the failed proposal to have members of the national judiciary participate in the process of making laws, which was twice voted down by the delegates to the Constitutional Convention. 

Justice Black could have added that the delegates also voted down a proposal to give Congress a veto over state laws (far from imagining that the Supreme Court would ever have such a veto, Alexander Hamilton declared "the judiciary is beyond comparison the weakest of the three departments of power," "next to nothing" compared to Congress and the President),172 that James Madison had assured the states the federal government's jurisdiction "extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects,"173 and that the Tenth Amendment expressly says, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." 

Against this, we have what Justice Harlan refers to in his concurring opinion as the "vague contours of the Due Process Clause."174 Confronted with a persistent misinterpretation of the Constitution on another subject, a frustrated James Madison asked this question: 

[S]hall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever?175 

Apparently so. 



In the next section, 
James Madison settles the abortion question.

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