BILL OF RIGHTS IN MODERN APPLICATION

Modern law and theory about the bill of rights reflects the contributions of eighteenth-century Framers, nineteenth-century Reconstructors, and twentieth-century judges. The most central juridical event in the development has been the "incorporation" of the Bill of Rights against state and local governments, a once controversial but now widely accepted judicial doctrine that draws strong support from the text and original intent of the fourteenth amendment.

The standard story about the Bill of Rights focuses on the Founding era in general and james madison in particular, but this story ignores all the ways in which the reconstruction generation breathed new life into an old bill. A separate Bill of Rights was no part of Madison's carefully conceived original plan at Philadelphia. And many lawmakers in the First Congress were relatively uninterested in the Bill, finding it a "nauseous" distraction. By contrast, Ohio Congressman john a. bingham, the father of the Fourteenth Amendment in the Reconstruction era, placed the Bill of Rights at the center of his thinking about constitutionalism. His speeches in the Thirty-Ninth Congress are far more inspired, and perhaps more inspiring, than Madison's in the First.

The Bill of Rights that emerged in the 1790s was a creature of its time. In the afterglow of a Revolutionary War waged by local governments against an imperial center, the bill of the 1790s affirmed various rights against Congress, but none against the states, as the Supreme Court properly held in barron v. city of baltimore (1833). And the rights that the original bill did affirm sounded more in federalism than in libertarianism. Congress could not establish a national church, but neither could it disestablish state churches. The first amendment was thus less anti-establishment than it was pro-states ' rights; religious policy would be decided locally, not nationally, in the American equivalent of the European Peace at Augsburg and Treaty of Westphalia. The second amendment celebrated local militias (the heroes of the american revolution), and the third amendment likewise reflected uneasiness about a central standing army. Much of the rest of the bill reinforced the powers of local juries. (The Fifth Amendment safeguarded grand juries; the Sixth Amendment, criminal petit juries; and the seventh amendment, civil juries. Beyond these specific clauses, many other parts of the original bill also championed the role of juries—who would protect popular publishers like John Peter Zenger in First Amendment cases, would hold abusive government officials liable for unreasonable searches in fourth amendment cases, and would help assess just compensation in Fifth Amendment cases.) The only amendment endorsed by every state convention demanding a Bill of Rights was the tenth amendment, which emphatically affirmed states' rights. Madison wanted more—a bill championing individual rights, and protecting them against states, too—but in 1791, he was struggling against the tide. His proposed amendment requiring states to respect speech, press, conscience, and juries passed the U.S. house of representatives (as the presciently numbered Fourteenth Amendment) but died in a U.S. senate that championed states' rights. Only after a civil war dramatized the need to limit abusive states would a new Fourteenth Amendment and distinctly modern view of the bill emerge—a bill celebrating individual rights and preventing states from abridging fundamental freedoms.

In retrospect, we can see that the process of incorporation began in the late nineteenth century, when the Court in chicago burlington & quincy railway v. chicago (1897) applied the principles of the takings clause to states. The incorporation of First Amendment freedomof speech rights began in earnest in 1925 (gitlow v. new york), and the religion clauses were first brought to bear against states in 1940 (cantwell v. connecticut, decided under the free exercise clause), and in 1947 (everson v. board of education, decided under the establishment clause). Later in the 1940s, the Court incorporated the Fourth Amendment (initially, without the exclusionary rule) ; and in the early 1960s, with Justice felix franfurter's departure from the Court, the logjam broke, and the Court made virtually all the rest of the bill applicable against states and local governments. The vehicle for this transformation was Justice william j. brennan, jr. 's brain-child—a theory of "selective incorporation" that in theory steered midway between Justice hugo black's insistence on total incorporation and critics' condemnation of the very idea of incorporation. In practice, Brennan's and the Warren Court's application of this doctrine came very close to the results advocated by Black. Today, only the Second and Seventh Amendments, and the Fifth Amendment's grand jury clause, have not been incorporated.

Mid-twentieth-century critics of the idea of incorporation—like Frankfurter and the second Justice John M. Harlan—argued that applying the Bill of Rights against state and local governments would ultimately weaken American liberty. If judges were to use the bill against states, the argument went, these judges would be tempted to water the bill down to take account of the considerable diversity of state practice; and then in turn, these judges would hold the federal government to only this watereddown version. But as Black and his fellow incorporationsts anticipated, extension of the Bill of Rights against the states has, in general, dramatically strengthened the bill, not weakened it, in both legal doctrine and popular consciousness. Unused muscles atrophy, while those that are regularly put to use grow strong. Before the Civil War, the Bill of Rights played a surprisingly trivial role. Only once was it used by the Court before 1866 to invalidate federal action, and that one use was dred scott v. sandford (1857)—which easily accepted the highly implausible claim that the Fifth Amendment due process clause invalidated free-soil territory laws like the northwest ordinance and the missouri compromise. In a review of newspapers published in 1841, a recent scholar could find not even one fiftieth anniversary celebration of the Bill of Rights.

In area after area, incorporation enabled judges first to invalidate state and local laws, and then, with this doctrinal base thus built up, judges could begin to keep Congress in check. The First Amendment is illustrative. Before 1925, when the Court began in earnest the process of First Amendment incorporation, free speech had never prevailed against a repressive statute in the U.S. Supreme Court. (And although no case ever reached the Court, no lower federal court in the 1790s ever invalidated the infamous sedition act of 1798.) Within a few years of incorporation, however, freedom of expression and religion began to win in the High Court in landmark cases involving states, like stromberg v. california and near v. minnesota ex rel. olson in 1931 protecting free speech and freedom of the press, and Cantwell v. Connecticut in 1940 protecting religious liberty. These and other cases began to build up a First Amendment tradition, in and out of court, and that tradition could then be used against even federal officials. Not until 1965 did the Court strike down an act of Congress on First Amendment grounds, and when it did so (in lamont v. postmaster general), it relied squarely on doctrine built up in earlier cases involving states. Consider also the flag-desecration cases of Texas v. Johnson (1989) and United States v. Eichman (1990). In the first case, the Justices defined the basic First Amendment principles to strike down a state statute and then, in the second case, the Court stood its ground on this platform to strike down an act of Congress.

The large body of modern legal doctrine concerning the Bill of Rights has rolled out of courtrooms and into the vocabulary and vision of law students, journalists, activists, and ultimately the citizenry at large. But without incorporation, and the steady flow of cases created by state and local laws, the Supreme Court would have had far fewer opportunities to be part of the ongoing American conversation about liberty. Here, too, we see that the central role of the Bill of Rights today owes at least as much to the Reconstruction as to the Founding.

Perhaps nowhere has the importance of incorporation in shaping American jurisprudence been more evident than in the field of constitutional criminal procedure. The overwhelming majority of criminal cases are prosecuted by state governments under state law; only after the incorporation of the Fourth, Fifth, Sixth, and Eighth Amendments did federal courts develop a robust and highly elaborate—if also highly controversial and perhaps mistaken—jurisprudence of constitutional criminal procedure. The centrality of race to modern conceptions of civil rights and civil liberties further confirms the significance of Reconstruction. Sometimes the role of the Fourteenth Amendment is explicitly acknowledged—as when the Court in bolling v. sharpe (1954) read the Framers' Fifth Amendment due process clause in light of the Reconstructors' equal protection clause. Other times, the influence of the Fourteenth Amendment on the jurisprudence of the Bill of Rights has been almost unconscious, as in the landmark 1964 case of new york times v. sullivan. The facts of this case—involving an all-white local jury from an ex-Confederate state trying to shut down the speech of a Yankee newspaper and a national civil rights movement led by a black preacher—obviously call to mind images of Reconstruction, but the Court tried to tell a Founding-era story starring Madison and Zenger rather than a Reconstruction tale touting Bingham and Frederick Douglass. But only the Reconstruction can explain why—contra zenger ' scase—local juries are not always to be trusted to protect free expression.

The modern notion of a self-contained federal bill of rights also derives at least as much from Reconstruction as from the Founding. The federal Constitution contains no explicit caption introducing a "Bill of Rights"—unlike many early state constitutions, which feature a self-styled "declaration of rights" preceding an explicit "frame of government." And because the first ten federal amendments ultimately came in as appendices rather than as a preface, still-later amendments had the effect of pushing early amendments to the middle—ten early postscripts before later post-postscripts. It was Bingham's generation that in effect added a closing parenthesis after the first eight (or nine or ten) amendments, distinguishing these amendments from all others. As a result, Americans today can lay claim to a federal " Bill of Rights" set apart from everything else, and symbolically first even if textually middling.

Bingham and others also insisted that the early amendments were largely a "Bill of Rights "—of persons, not states. Today's conventional wisdom sharply distinguishes between structural issues and rights issues. Here too, this distinction is attributed to the Framers—their Constitution delineated structure; their bill delineated rights. But once again this conventional account misreads the Founding and misses the Reconstruction. Structure and rights tightly intertwined in the original Constitution and in the original Bill of Rights, which themselves tightly intertwined. The basic need to separate rights from structure comes from the Fourteenth Amendment itself—from the need for a suitable filter that enables incorporation to mine and refine rights from the mixed ore in which these rights were initially embedded in the Framers' quarry.

What, in the end, are we to make of the pervasive ways in which our stock stories have exaggerated the Founding and diminished the Reconstruction? Perhaps many of us are guilty of a kind of curiously selective ancestor worship—one that gives too much credit to Madison and not enough to Bingham, that celebrates thomas jefferson and patrick henry but slights Harriet Beecher Stowe and Frederick Douglass. Great as Madison and Jefferson were, they lived and died as slaveholders, and their Bill of Rights was tainted by its quiet complicity with the original sin of slavery. Even as we celebrate the Framers, we must ponder the sobering words of charles pinckney in the 1788 South Carolina ratification debates: "Another reason weighed particularly, with the members of this state, against the insertion of a bill of rights. Such bills generally begin with declaring that all men are by nature free. Now, we should make that declaration with very bad grace, when a large part of our property consists in men who are actually born slaves."

But the Fourteenth Amendment did begin with an affirmation of the freedom—and citizenship—of all. The midwives of this new birth of freedom were women alongside men, blacks alongside whites. As twentieth-century judges have begun to realize, because of these nineteenth-century men and women, our eighteenth-century Bill of Rights has taken on new life and meaning.

Akhil Reed Amar
(2000)