The Bill of Rights was drafted to restrain only the national government. In 1868, the Fourteenth Amendment was adopted. The amendment requires states to ensure the rights of United States citizens and grant them equal protection and due process. The Supreme Court decides which rights the states must incorporate from the Constitution.
The incorporation debates were long and divided. The minority on Court argued the Fourteenth Amendment calls for states to undertake total incorporation of all amendments. The majority of the court pressed for selective incorporation, under which some parts of the Bill of Rights apply to state governments.
Which Rights State Governments
Must Incorporate
(1930 - 1992)
Not Incorporated Incorporated
2 1
3 4
5 (Grand Jury) 5 (rest)
7 6
10 8
9
Freedom of speech was the first right to be incorporated, a step taken in
Gitlow v. New York, 1925. By the 1940's, the remaining portions
of the First Amendment were brought under the same scope. Benjamin Cordozo
weighed heavy in the incorporation debates. In Palko v.
Connecticut, 1937, Cordozo said rights that are "implicit in the
concept of ordered liberty" and by which "liberty nor justice would exist if
they were sacrificed" must be incorporated (see box). The rights which states
must incorporate are viewed as minimums. States can go farther, granting
rights not required.
Freedom of Speech and Press
The government can not abridge the freedom of speech or press. The court has
six principle tests to determine if a piece of legislation or a governmental
action brought before them is unconstitutional:
Freedom of Assembly
The people are granted the "right to peaceably assemble." Just where they are
allowed to assemble is another question. Gatherings in public forums, such as
parks or streets, can only have their time and manner regulated. Libraries
and schools are considered limited public forums, where access can be limited,
but not because of viewpoint to be expressed. Private property owners are not
required by the Constitution to allow free public discourse, but local
governments can obligate shopping mall owners to allow free speech.
Matters Not Protected by the First Amendment
While the First Amendment provides Americans with significant leeway in what
they can say, it does not provide an unlimited ability to speak. While
Robertson v. Baldwin, 165 US 281, doesn't deal with illegal
speech, it notes that the constitutuion is not a novel set of constraints,
using the first amendment as an example doesn't protect libelous or indecent
publications. The ability of the Supreme Court to regulate speech was further
defined in Patterson v. Colorado, 205 US 454, 462; in which the
court wrote [the first amendment] is "to prevent all such previous restraints
upon publicatoins as had been practiced by other governments," and they do not
prevent the subsequent punishment of such as may be deemed contrary to the
public welfare. Commonwealth v. Blandig, 3 Pick. 304, 313, 314;
Respublica v. Oswald, 1 Dallas, 319, 325.
Libelous speech is prohibited, but in New York Times v. Sullivan, 1964, the Court began making it harder for public officials and public figures to win libel cases. Such persons must show the libelous statement was made with actual malice. The case of Harte- Hanks, Inc. v. Connaughton, 1989, defined actual malice as a "reckless disregard for the truth," meaning that the statement was made with a "high degree awareness of probable falsity." Private persons and matters not of public concern have a lower threshold; only needing to prove the statements are false and negligently published.
Obscene speech is not guarded by the Constitution. Just what speech is considered obscene is open to wide interpretation, so each community is given the ability to define it for themselves. Chief Justice Warren Burger developed a widely used definition for obscene speech in the case of Miller v. California, 1973. For speech to be found obscene, it must meet all three parts of the "Miller test:"
In addition, the court has created three doctrines to determine what other kinds of speech can be limited.
Schenck v. United States also decided an even more serious matter, for it was the first case to stiefel speech for being seditious. Justice Holmes founded Clear and Present Danger Doctrine in delivering the court's opinion:
The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hinderance to its effort that their utterance will not be endured so long as men fight, and that no court could regard them as protected by any constitutional right.Sedition is the use of violent means to either overthrow the government or interrupt its activities. The Sedition Act of 1798 outlawed false, scandalous or malicious statements intended to tarnish the government. The public outrage over this law led to the Federalists being ousted in the next election.
The Smith Act of 1940 contained similar terms, saying one can't advocate the violent overthrow of government. The Court upheld the law in Dennis v. United States, 1951. This law has subsequently been reinterpreted by the Court in Yates v. United States, 1957 and Brandenburg v. Ohio, 1969 to mean one can advocate the concept of violent overthrow, but can not advocate or provoke specific or immediate acts.
Waging war against the nation or aiding the nation's enemies is considered treason. Treason must be proved by two witnesses to the overt act. This precise burden of proof was included in the Constitution to ensure laws are not so loosely drawn as to have a chilling effect on constitutional rights.
The Constitution states "no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted." In essence, this means relatives of those committing treasonous acts can not be held responsible.
Persons do have the right to own property. This right is pieced together from the Fifth Amendment, which states "no person shall be deprived of... property, without due process of law; nor shall private property be taken for public use, without just compensation." From this mandate, the process of eminent domain has arisen for taking of property by the government.
Zoning laws regulating land use were determined by Euclid v. Ambler Realty Co., 1926, to be a legitimate police power, not a taking of property, needed to regulate what each community considers to be nuisences. Justice Sutherland said for the Court's majority that such regulations are needed to address contemporary urban problems and the view of the Court must evolve to meet such circumstances (272 US 386).
The regulation placed upon a property owner must "substantially advance" a "legitimate state interest" being infringed upon by the property owner's project (Nolan v. California Coastal Commission, 483 US 834; 1987). If the government moves beyond such police powers, such as eliminating a prior use, the action is considered a regulatory taking and compensation is required.
Presidents are granted executive privilege, giving them the ability to withhold information for reasons of security and confidentiality. This privilege is quite broad, though has some limits.
Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association.... It is beyond debate that freedom to engage in association for the advancemtn of beliefs and ideas is an inseparable aspect of the "liberty" assured by the Due Process Clause fo the Fourteenth Amendment. (357 US 460)The freedom of association implies there is a correlary freedom not to associate. These opposing desires sometimes collide. Clubs can associate around commonalities such as ethnicity, religion or sex. But, large organizations with broader social and economic purposes can not keep out members soley because they are a particular sex or race, since admitting such persons will not change such organizations' purposes. The first example of this brought before the Supreme Court involved the national office of the Jaycees threatening to expell the Minnesota chapters for admitting women. Justice Brennan delivered the Court's Opinion in Roberts v. United States Jaycees, 1984, saying:
Infringemts on that right [of association] may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms. (468 US 623)
The Right to Remain Silent
The Fifth Amendment protects people from incriminating themselves of criminal
charges. This right has been extrapolated to apply during all government
questioning. The Court held in Hale v. Henkel, 1906, that
corporations are not immune from compulsory self-incrimination (Robert
Cushman, Cases in Civil Liberties, p. 81, Prentice Hall, 1979).
Issuance of Warrants
The Fourth Amendment says "the right of the people to be secure... against
unreasonable searches and seizures, shall not be violated." The Amendment
calls for warrants to be issued only on probable cause and specifically name
who or what is to be searched or seized. Despite those specifics, there is no
explicit requirement for warrants. The need for warrants has been defined by
case law over the years.
Warrants must be issued by a "neutral and detached magistrate." Just who is such a magistrate has been further defined by Shadwick v. Tampa, 1972, which upheld issuance of an arrest warrant by a court clerk, completely independent of the police. Though, Connally v. Georgia, 1977, voided warrants issued by a magistrate if they are given $5 if they issue a warrant but nothing if they do not. The decision in Coolidge v. New Hampshire, 1971, said a seizure "cannot constitutionally rest upon the warrant issued by the state official who was the chief investigator and prosecutor in the case." (Cushman, p. 106.)
Reasonable Search and Seizure
A search must be reasonable whether or not a warrant was secured. Under what
circumstances officers can reasonably search without a warrant continues to be
a major debate in the Supreme Court.
Authorities need warrants any time they invade a person's privacy. Privacy was extended to the mails by Ex parte Jackson, 1878. The Court determined "the principal object of the Fourth Amendment is the protection of privacy rather than property," in Warden v. Hayden, 1967. This new interpretation brought the Court to its decision in Katz v. United States, 1967, where Justice Stewart found:
What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.... Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures.The Fourth Amendment's requirements even apply to domestic matters of national security. Justice Powell wrote a poignant opinion in United States v. United States District Court, 1972:
The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect "domestic security...." We recognize, as we have before, the constitutional basis of the President's domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment. In this case we hold that this requires an appropriate prior warrant procedure.Corporations are protected from unreasonable search and seizure, as determined by Hale v. Henkel, 1906.
There are several circumstances where a warrantless search is considered reasonable. Officers need probable cause to enter such circumstances. Brinegar v. United States, 1949 considered probable cause as the "practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." In Henry v. United States, 1959, the Court found stopping a car to be an arrest, thus, there must be probable cause for the stop itself; meaning probable case can not be gained after looking in the car.
A persons can by stopped by an officer who has probable cause to suspect that person is involved in illegal activity. During such a stop, the officer may search that person for weapons. This finding was written by Chief Justice Waren in Terry v. Ohio, 1968.
During such stops and while executing other lawful searches, Marron v. United States, 1927, determined that evidence found in "plain view" can be seized and used in trial. Arizona v. Hicks, 1987, and Minnesota v. Dickerson, 1993, found that such evidence must be "immediately apparent" to the officer and can not be discovered by a further search, manipulating unknown objects to figure out what they are (Opinion of the Court, Minnesota v. Dickerson, 1993; pre-publication version provided by the Supreme Court's Reporter of Decisions, downloaded from the computer archives of Case Western Reserve University).
A lawful custodial arrest gives officers further search powers, permitting a complete examination of the arrestee and their clothing. Justice Rhenquist wrote in Robinson v. United States, 1973, "the authority to search incident to a lawful arrest rests as much on the need to disarm the suspect... as it does on the need to preserve evidence on his person for later use at trial...." The arrest incident also allows a limited search of the premises the arrestee is on. These searches are restricted by the decision in Chimel v. California, 1969:
When an arrest is made, it is reasonable for the arresting officer to remove any weapons... and seize any evidence on the arrestee's person in order to prevent its concealment or destruction.... [in] the area "within his immediate control...." There is no comparable justification, however, for routinely searching rooms other than that in which an arrest occurs -- or for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself.If evidence is in a vehicle, officers have the right to seize it without a warrant "because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.," This finding from Carroll v. United States, 1925, does have limits though. In Coolidge v. New Hampshire, 1971, Justice Stewart noted that a warrant is required when the vehicle and the evidence in it are not "fleeting," since officers have the opportunity to obtain a warrant.
(Entire section, except as noted, is from: Cushman, pp. 81-120.)
For more information on search and seizure
Drug Testing
Warrants are needed to undertake drug tests. Two exceptions to this
requirement are after some federal employees have an accident or an individual
seems to be driving under the influence of alcohol. Alcohol impaired drivers
can be tested because the evidence is fleeting. By the time a warrant can be
secured to test for alcohol, the person's body will have partially or
completely metabolized the liquor.
Arrest
Warrants are also needed to arrest an individual if they are in a place they
can reasonably expect privacy. This privacy may be breached if there is an
emergency. A person can be arrested without a warrant in a public place if
the officer has probable cause. Arrested individuals must face a magistrate
within two days.
Upon arrest, the case of Miranda v. United States, 1966, requires arrestees be notified of their rights. The Miranda Warning tells individuals:
Exclusionary Rule
If any of the above rights are abridged, the evidence obtained therefrom may
not be used in court. This was first applied to federal cases by Weeks
v. United States, 1914, and then applied to state officials in
Mapp v. Ohio, 1961 (Cushman, pp. 120-128).
Court Proceedings
The Sixth Amendment deals with criminal proceedings. Criminal cases must be
handled in a timely manner and tried before an impartial jury. Persons'
accused must be told the charges against them, know and hear the witnesses
against him and have the right to obtain witnesses by compulson if need be.
The assistance of a lawyer is also a right. The right to counsel for the
defence, even if the person can not afford such assistance, was first
guaranteed in federal trials by Johnson v. Zerbst, 1938, and then
the Court demanded states incorporate such assistance in Gideon v.
Wainwright, 1963 (Cushman, pp. 164-166). Persons accused of crimes do
not have to testify against themselves, a right granted by the Fifth
Amendment. The original Constitution requires criminal trials take place in
the state where the crime was committed.
Cases dealing with a capital offense are guided by the Fifth Amendment. The accused must first be indicted by a grand jury. A person can tried on a charge only once.
The Seventh Amendment requires civil cases be tried before a jury if "the value in controversy shall exced twenty dollars." In addition, no case can be reheard except other than by common law.
The Eighth Amendment says bail and sentences can not be excessive, cruel or unusual.
Habeas corpus is a method the court has to ensure prisoners are being legally held; a provision from the Constitution. The officers must literally "produce the body" of the prisoner in court and explain the reason for their incarceration. If a person is being illegally held, the court can order the person be released immediately.
It is unconstitutional to pass an ex post facto laws or bill of attainder. Ex post facto laws increase penalties of crimes for those persons who have already committed them. Bills of attainder inflict punishment upon individuals or groups.
The national government's next step was proposing the Fourteenth Amendment, in part to give the civil rights legislation adopted two months earlier a constitutional basis (Cushman, p. 416) (Congressional Globe, pp. 1861, 3024, 3149). This amendment defined citizens as all persons born here or naturalized. It required states to grant all such persons equal protection of its laws and be given due process before taking a citizen's life, liberty or property. The amendment was adopted about two years later in July, 1868 (United States Statutes at Large).
The Fifteenth Amendment was proposed in February, 1869, to ensure citizens' right to vote, regardless of race or color. Congress required Mississippi, Texas, Virginia and Georgia to ratify this amendment before they would be readmitted to congress. Early in 1870, the amendment was ratified (United States Statutes at Large). The right to vote only lasted seven years in southern states. After reconstruction ended in 1877 and federal troops withdrew from the south, southerners no longer gave blacks the vote. Blacks were kept from the polls not only by violence and intimidation, but also by legal mechanisms such as the white primary, gerrymandering, literacy tests and the poll tax.
The Fourteenth and Fifteenth Amendments only protect citizens from government actions. Congress adopted the Enforcement Act of 1870 to ensure two or more private individuals do not conspire to deny other citizens the rights granted by our nation's Constitution and laws. Though the Constitution does not explicitly give the national government power to regulate individuals, in Ex parte Yarborough, 1884, the Supreme Court found the nation has the implied power to protect such rights. (Cushman, p. 394 & 416.)
Negroes were legally kept from using the same facilities whites used by a system of segregation commonly known as Jim Crow laws. Jim Crow was a fictitious and stereotypical negro in song-and-dance acts produced by Thomas Rice (VWebster's Third New International Dictionary, 1986). Congress enacted the Civil Rights Act of 1875 to prohibit discrimination in places of public accommodation. The Supreme Court struck that law during 1883 with its decision on the Civil Rights Cases. The decision stemmed from a combined hearing of several negro appeals, all filing charges against owners of theaters and hotels. This decision said the Fourteenth Amendment only allows Congress to regulate state governments, not private entities. (Cushman, p. 413.) This decision differs from Ex parte Yarborough because equal access to private facilities is not a constitutional guarantee.
The Court once again reaffirmed segregation's constitutionality in deciding Plessy v. Ferguson, 1896. This case found it legitimate to establish "separate but equal" facilities for blacks. But the equal facilities never happened to a significant extent.
Blacks continued bringing suits to the Civil Court claiming lack of equality. The court gradually developed more and more stringent definitions of just what "equal" facilities are, but never touching the separate but equal doctrine. Negroes' legal persistence paid off in 1954. The Supreme Court reached a unanimous decision in Brown v. Board of Education of Topeka, rejecting the language of Plessy v. Ferguson, through which Chief Justice Warren stated: "Separate educational facilities are inherently unequal." The principles of this landmark decision were used the next year by lower courts to desegregate other public facilities, rulings that were affirmed by the Supreme Court without opinion (Cushman, p. 330-337).
Blacks realized they would have to directly demand store owners to provide equal services. Chicago was the site of the first sit-ins, during 1947. From these protests came a group named the Congress on Racial Equality (CORE). CORE went on to organize sit-ins and freedom rides across the nation. The freedom rides peaked in 1961 when they were testing to see if the Interstate Commerce Commission's new desegregation regulations were being observed. (Reference Library of Black America, Afro-American Press & Gale Research, 1990.) The important Montgomery Bus Boycott took place in 1955. Protests continued to expand and heat up. Rev. Abernathy and Rev. Dr. Martin Luther King Jr. were jailed for leading demonstrations without permits in Albany, Georgia during 1962 (New York Times, July 11, 1962).
Blacks still were widely kept from registering to vote and appearing at the polls. The states of Virginia, Alabama, Arkansas, Mississippi and Texas still had poll taxes. On August, 1962, Congress proposed the Twenty-Fourth Amendment to eliminate the poll tax in national elections. By June, 1963, 36 states had ratified the amendment. Only two more states were needed. (New York Times, August 28, 1962; June 30, 1963 & January 23, 1964).
May 20, 1963 was a major day in the civil rights movement. The Supreme Court took another swipe at racism in public accommodations while supporting the sit-in movement. The Court found persons can't be prosecuted for seeking service in segregated facilities if there is a local or state ordinance calling for segregation while also reaffirming such laws to be unconstitutional. That same day, the Board of Education in Birmingham, Alabama, expelled and suspended over 1,000 negro students for participation in demonstrations, that is 5% of the negro students in the district. A district court issued an injunction two days later to stop the expulsion. In Durham and Greensboro, North Carolina, 1,400 people were arrested while protesting outside front of theaters restaurants. (New York Times, May 21 & 23, 1963.)
The famous march on Washington took place shortly there after, in August, 1963. There was a surge of civic interest. Most cities soon had their own demonstrations. That fall, many schools were desegregated.
Before his assassination, President Kennedy urged the passing of the Twenty- Fourth Amendment and a strong civil rights bill. Vice President Johnson carried the torch upon assuming the Presidency. The amendment was adopted by February, 1964 (New York Times, February 5, 1964). Congress finally accepted the challenge, passing the Civil Rights Act of 1964, but not without a 75 day filibuster in the Senate (New York Times, June 20, 1964). The new act prohibited segregation of public accommodations as well as barring employment discrimination by interstate firms with more than 15 employees.
By the end of the year, the Supreme Court had solidly changed it's mind on human rights issues. In Heart of Atlanta Motel v. United States, 1964, the Court found Congress' power to regulate commerce among states was sufficient constitutional ground for a law demanding equality in public accommodations.
Earlier that year, rots erupted in many cities around New York and New Jersey, mainly sparked by police wrongdoing. Tempers flared in the Harlem, Bedford Stuyvesant and Brownsville sections of New York City. Rochester was next, followed by Jersey City, Elizabeth and Paterson. (New York Times, July 19 & 25; August 3 & 12, 1964.)
Sella and Montgomery, Alabama, had become a focal point of demonstrations. In March, 1965, a 54 mile protest march was planned from Sella to Montgomery, the state's capital. Governor Wallace was determined to see it falter. State troopers repeatedly assaulted the gathering crowd. President Johnson demanded Alabama stop harming the demonstrators, eventually backing up the demand by sending 4,000 troops. The march had 3,200 protesting at its start in Sella and grew to 25,000 by the time it got to Montgomery. (New York Times, March 8, 18, 19 & 21, 1965.)
Congress worked on the Voting Rights Act of 1965 during that summer. The Senate refused to abolish poll tax in local elections, but the House approved the ban. The Conference Committee agreed to get the Department of Justice to sue for the poll tax abolition. The new act has strict enforcement and intervention measures. In Harper v. Virginia Board of Elections, 1966, the Supreme Court decided poll taxes deny equal protection of the laws (Cushman, p. 398).
At this point it seems the legal foundation for equality was in place. Unfortunately, equality was still often being denied by powerful individuals and institutions. In the Fall of 1965, only 10% of southern blacks were attending desegregated schools (Cushman, p. 334). Economic opportunities were also closed to them. Police brutality was an all too common occurrence. Perhaps because the blacks had come so close to their liberation, they decided they wouldn't accept the brutality anymore. Riots again ensued around the nation. Los Angeles, Chicago and Newark were some of the largest.
Beside having restrictive covenants struck by Shelley v. Kraemer in 1948, little had been done about housing discrimination. The Fair Housing Act of 1968 was the first national attempt to provide better housing for blacks. The act, as amended through 1988, prohibits discrimination on the basis of race, religion, color, national origin, sex or disability. No discriminatory advertising is allowed. The act affects all housing offered for sale or rent except if the property is:
Returning to schools, the Court had found in 1969 that too many schools were ignoring the mandate to desegregate in all deliberate speed, so the justices demanded it be done immediately. In the decision on Alexander v. Holmes County Board of Education, the court said we must "terminate dual school systems at once and to operate now and hereafter only unitary schools." (Cushman, p. 334 & 335.)
Two cases of privately owned recreation areas were brought before the Supreme Court in 1969: Daniel v. Paul and Sullivan v. Little Hunting Park, Inc. The Court decided pulbic accommodations can not disguise themselves as private clubs to avoid the Civil Rights Act of 1964. Justice Douglas stated the Opinion of the Court in the Sullivan case: "There was no plan or purpose of exclusiveness. It is open to every white person within the geographic area, there being no selective element other than race," (396 US 236).
The Equal Rights Amendment was also a difficult struggle, and sadly one that didn't attain its final goal. The effort did produce positive effects along the way though. Many states adopted their own laws barring sex discrimination. The organizing also brought together women who continued working on other fronts.
Asians also faced severe discrimination. In 1906, San Francisco kicked asians out of the municipal schools. Such segregation was upheld in the case of Gong Lum v. Rice, 1927 Mississippi, no local school for chinese in her district, thus petitioned to attend white school Court found such segregation didn't confilct with Fourteenth Amendment. Justice Taft. (275 US 78, 1927).
Asian legal work brought about the 1974 decision of Lau v. Nichols, requiring bilingual education in schools where a substantial portion of the students do not speak english well. The case was decided on the grounds of the Civil Rights Act of 1964, banning discrimination on gournds of race, color or national origin in any proggram activty receiving Federal assistance. This tactic resulted in the Court not getting into the Equal Protection Clause argument. (414 US 566, 1974).
Many large corporations realized affirmative action would result in hiring poorly educated individuals. Such companies undertook programs to educate and empower black communities. Corporate philanthropy supported local and national schools and organizations. (Samuel Convissor, phone conversations, March 29 & April 23, 1994.)
The difficult thing to rectify with affirmative action programs is the possibility of them promoting reverse discrimination, a situation found in University of California Regents v. Bakke, 1978. The case of Richmond v. Croson, 1989, had similar findings, in which Justice O'Connor struck down minority and disadvantaged business enterprise requirements that didn't have a strong basis in evidence that racial preference is needed. Justice Marshall said in his dissent that racist actions are not equal to efforts to reverse past racism.
Metro Broadcasting v. Federal Communications Commission, 1990, Justice William Brennan said national actions to reverse previous discrimination are only subject to the heightened scrutiny test, not the strict scrutiny test previously used. He went on to say the national government may even use racial classifications for other objectives too.
Each year, law permits up to 700,000 aliens to become permanent residents. Preference is given to relatives of US citizens and residents. Of those, over 50,000 are usually political refugees. Refugees face well founded fears of persecution based on distinctions such as religion, race, class. In addition, asylum can be granted to those facing persecution on a personal basis that is greater than others. Aliens are counted in the census and included in apportioning congressional districts. They enjoy most rights granted to everyone by the Constitution.
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Last updated: 4 April 1999