Question

Describe the piecemeal nationalization of the Bill of Rights throughout American history. In particular, discuss the Supreme Court's pre-Civil War interpretation of the scope of the Bill of Rights, the Fourteenth Amendment , and the process of selective incorporation

Answer 1

The bill of rights are the first ten amendments to the United States Constitution, proposed after the 1788 debate on the constitution. They mostly concern about the personal rights and freedoms of the citizens, the limitations of the government's power during judicial proceedings and make clear that all powers not explicitly given to the government in the constitution, belong to the people.

They were initially proposed to cover both federal and state governments, but amendements that were incorporated in the 18th century applied only to the federal government. Since then, slowly they have been extended to apply to the state and local governments also (this process is called incorporation). Since they have been incorporated slowly, the question refers to the process as piecemeal nationalization of the bill of rights.

The process of incorporation started in 1897 when, post the adoption of the 14th amendment in 1868 which prohibited any state to deprive any person of life, liberty or property without 'due process of law'. This became the basis through which the courts expanded the bill of rights to the states.

Although the 14th amendment was ratified in 1868, for a while courts had a narrow reading of it and did not extend it to all state laws and processes. Cases such as 1873's Slaughter House Cases or 1884s Hurtado v. California had this narrow reading of the amendment. But during the 1890s, under pressure from business interests who feared state regulatory legislations (especially railroads), the Supreme Court expanded the scope of the 14th amendment. In 1897, in the case  Chicago, Burlington & Quincy Railroad Co. v. Chicago, the court held that the due process clause required the states when taking private property for a public purpose to give the owners just compensation. Since a right in the bill of rights was used in this case, this meant the court repudiated the reasoning of the Hurtado v. California case, in which it had held that no right specifically guaranteed in the Bill of Rights could apply to the states via the due process clause.

The process went on throughout the early 20th century, where slowly many elements of the bill of rights were used on states also. What the question refers to as selective incorporation happened in the 1960s, when the court rejected the that all of the rights in the Bill of Rights applied to the states via the Fourteenth Amendment. But it did agree that most of the rights in the Bill of Rights did apply to the states. Through cases such as Mapp v. Ohio in 1961, when a majority of the Court held that the full Fourth Amendment as well as the federal exclusionary rule, forbidding the use of illegally seized evidence in court, applied to the states via the due process clause, incorporation carried on. It was followed by a series of cases in which the Court held that "cruel and unusual punishments" clause of the Eighth Amendment (Robinson v. California, 1962), "assistance of counsel" clause of the Sixth Amendment (Gideon v. Wainwright, 1963), self-incrimination clause of the Fifth Amendment (Malloy v. Hogan, 1964), the provisions in the Sixth Amendment guaranteeing defendants the right to confront and cross-examine
prosecution witnesses (Pointer v. Texas, 1965), the right to a speedy trial (Klopfer v. North Carolina, 1967), the right to subpoena favorable witnesses (Washington v. Texas, 1967), and the right to a trial by jury (Duncan v. Louisiana, 1968), and the double jeopardy clause of the Fifth Amendment (Benton v. Maryland, 1969) were applicable to the states in the identical way in which they applied to the national government.

This process is called selective incorporation.