The Secret Life of the Bill of
Rights
by Susan Shelley
The fight over Supreme Court nominees began before
anyone in it was born. To see the origin, climb into your time machine and
go backwards. Don't stop at the confirmation hearings for Clarence Thomas
in 1991 or Robert Bork in 1987. Park the car in 1900 and step inside the
U.S. Supreme Court.
There you will hear Justice Rufus Wheeler Peckham explain
to Utah bank robber "Gunplay" Maxwell that he doesn't have a right to be
indicted only by a grand jury, or to be tried by a jury of twelve instead
of eight, or to trial by jury at all, because the Bill of Rights doesn't
apply in state courts.
"The first ten amendments," Justice Peckham wrote in
Maxwell v. Dow, "were intended as restraints and limitations upon
the powers of the general government, and were not intended to and did not
have any effect upon the powers of the respective states. This has been many
times decided."
Justice Peckham listed case after case to demonstrate
that the Bill of Rights simply did not apply to the states, something James
Madison had pointed out in 1789 when he argued for a constitutional amendment
that would prevent the states from violating "the equal rights of conscience,
or the freedom of the press, or trial by jury in criminal cases." Madison's
amendment was defeated in the Senate and never became part of the
Constitution.
The Bill of Rights applies to the states today not
because of a constitutional amendment, but because of something called the
Incorporation Doctrine, an idea invented and developed by the U.S. Supreme
Court over the course of the 20th century.
The Incorporation Doctrine holds that some rights are
so fundamental to the idea of due process of law that they are incorporated
into the Fourteenth Amendment, which bars any state from denying due process
of law to any person.
The Supreme Court has held that fundamental rights
may not be infringed by the states without a compelling reason. The justices
determine, by a vote of five to four in some cases, which rights are fundamental
and which reasons are compelling.
But what is the standard for selection?
Justice Felix Frankfurter wondered about that in the
1947 case of Adamson v. California, which held that the Fifth Amendment
right against self-incrimination was not one of the incorporated rights.
"Some are in and some are out," Justice Frankfurter
complained in his concurring opinion, "but we are left in the dark as to
which are in and which are out. Nor are we given the calculus for determining
which go in and which stay out. If the basis of selection is merely that
those provisions of the first eight Amendments are incorporated which commend
themselves to individual justices as indispensable to the dignity and happiness
of a free man, we are thrown back to a merely subjective test."
It was 1964 before the justices believed that the right
against self-incrimination was fundamental enough to incorporate, and 1968
before the right to a jury trial in all criminal cases joined it.
In a 1965 case, Griswold v. Connecticut, the
Supreme Court went beyond the text of the Bill of Rights to infer and incorporate
a constitutional right to marital privacy. "With all deference," wrote Justice
Potter Stewart in dissent, "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."
Chief Justice John Roberts told the Senate Judiciary
Committee during his confirmation hearings that he believes there is a right
of privacy in the Constitution. Whether he believes it is fundamental, and
whether he believes the states have a compelling interest in protecting unborn
life which outweighs the right of privacy, we have yet to learn.
Using the Incorporation Doctrine, the Supreme Court
has expanded individual rights and limited the power of the states to legislate
over a wide range of activities that once were solidly within the province
of state law.
Some of these activities were on the mind of Senator
Edward M. Kennedy when he asked John Roberts during confirmation hearings
whether he accepts the constitutionality of the 1964 Civil Rights Act, the
1965 Voting Rights Act and the 1954 Brown v. Board of Education
decision.
If that seems like an unnecessary question, climb back
into your time machine and set it for 1866, when the Congress that wrote
the Fourteenth Amendment was debating a civil rights bill containing this
language:
"There shall be no discrimination in civil rights or
immunities among the inhabitants of any State or Territory of the United
States on account of race, color, or previous condition of slavery."
The House of Representatives cut that language out
of the bill after lawmakers fretted that it would lead the courts to strike
down racial segregation, an interpretation the House leadership said was
"not intended."
Rep. Thaddeus Stevens of Pennsylvania tried to insert
a clause into the Fourteenth Amendment that read, "All laws, state or national,
shall operate impartially and equally on all persons without regard to color
or race." That language was killed in subcommittee.
It is an unfortunate historical fact that the U.S.
Constitution has never been amended to ban racial discrimination, or gender
discrimination.
This is the pothole that busts the axle of the strict
constructionists' bandwagon. Chief Justice Roberts steered around it during
his confirmation hearings by citing academic research suggesting it was the
true intention of the framers of the Fourteenth Amendment to ban racial
discrimination and school segregation.
Judge for yourself.
Federal and state laws against discrimination, like
the protections of the Bill of Rights in state courts, are tenuously secured
by a judicial interpretation of "due process" and "equal protection" that
was pulled out of the air. All rights so created can be eroded or reversed
by justices who believe earlier cases were wrongly decided.
Justice Antonin Scalia said as much in his dissenting
opinion in Dickerson v. United States, when he argued unsuccessfully
to overturn the landmark 1966 case, Miranda v. Arizona. "I see little
harm in admitting that we made a mistake," he wrote.
The bigger mistake was to rely on the Supreme Court
to update the Constitution and give up on the Article V process of amending
it. That's the reason so many long-established rights now hang by a thread
of Sandra Day O'Connor's robe.
January 22, 2006
© Copyright 2006 by Susan
Shelley
Source Notes:
Maxwell v. Dow, 176 U.S. 581 (1900).
The quotation can be found at page 587. The decision can be read online
at:
Madison's amendment: Annals of Congress,
vol. 1 (Washington D.C.: Gales & Seaton, 1834) pp.424-49, cited in Eugene
W. Hickok, Jr., editor, "The Bill of Rights: Original Meaning and Current
Understanding" (1991), p. 4; See also Leonard W. Levy, "Original Intent and
the Framers' Constitution" (1988), pp. 166-170.
Adamson v. California, 332 U.S. 46 (1947).
The Frankfurter quotation can be found at page 65. The decision can be read
online at:
Incorporation of the Fifth Amendment right
against self-incrimination: Malloy v. Hogan, 378 U.S. 1 (1964). The decision
can be read online at:
Incorporation of the Sixth Amendment right
to a jury trial in all criminal cases: Duncan v. Louisiana, 391 U.S.
145 (1968). The decision can be read online at:
Griswold v. Connecticut, 381 U.S. 479
(1965). The Stewart quotation can be found at page 530. The decision can
be read online at:
Roberts and Kennedy exchanges: Transcript
of Senate Judiciary Committee confirmation hearings, September 13, 2005.
Available online at:
and
Civil Rights Bill of 1866: Charles Fairman,
"History of the Supreme Court of the United States, Volume VI, Reconstruction
and Reunion, 1864-88, Part One" (1971), page 1193. For detailed notes on
the debate over the Civil Rights Bill of 1866 and the Fourteenth Amendment,
please see the appendix to "The 37th Amendment," online at:
Dickerson v. United States, 000 U.S.
99-5525 (2000). The decision, and Justice Scalia's dissent (joined by Justice
Thomas), can be read online at:
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