|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.
Incorporation of the Bill of Rights
into the Fourteenth Amendment,
Why It's a Problem,
and How to Fix It
(If you missed the beginning and want to start at the top, click 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:
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,
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,
By 1949, Hamilton's original understanding had given way to this definition from Justice Felix Frankfurter:
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:
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,
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,
Justice Clark wrote back,
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:
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:
In 1964, the Court overruled Twining v. New Jersey and Adamson v. California and held:
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
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,
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,
Justice Stewart concludes,
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:
This reference to the Ninth Amendment appears to annoy Justice Stewart. He writes:
Justice Goldberg answers:
You can determine for yourself whether Justice Goldberg is turning somersaults. We're just getting to the heart of his argument:
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:
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:
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