Selective Incorporation, The Bill of Rights, and The Fourteenth Amendment


What’s the Deal with the Fourteenth Amendment


The United Stated Government has changed incredibly since the Framers constructed the U.S Constitution. One of the greatest achievements for civil liberties and civil rights happened with the passing of the 14th Amendment in 1868 which guaranteed equal protection for all person’s residing in the United States. However, this amendment was not taken seriously by the states for almost
a hundred years.

To this day, though some may not realize it, there are rights guaranteed in the Bill Of Rights that apply only to the National Government. That means States are not held by those specific doctrines. Many States have a Bill of Rights in their State Constitution, but they can, and do, have provisions that are not stated in the National Constitution. The Bill of Rights has always been there to limit the scope of the National Government and it has been a long haul, through selective incorporation, for most to gain their civil rights and liberties.

The Road to the Fourteenth

The Fourteenth Amendment is one of the most important Amendments to the Constitution. It is so because it is what grants every citizen equal protection within the United States. Initially, State governments maintained more power over the people than the National Government. State Bill of Rights existed, but they did not contain every aspect of the National Bill of Rights. This meant that States could abuse their power in many different ways. There were two main movements that led to the adoption of the Fourteenth Amendment and they are taught in every American History class. There was the Anti-Slavery Movement and the Women’s Rights Movement. The Anti-Slavery Movement turns into the Civil Rights Movement in the 1900’s. One must look at these two movements to see where and why the Fourteenth Amendment was adopted.

Explanation of Selective Incorporation:

Anti-Slavery Movement


One of the biggest and most divisive conflicts to date in American History has been the Civil War. This conflict divided the country into North and South, slave owners verse non slave owners, and advocates for civil rights. Slavery at the time had been going on since the country was formulated so it is not hard to see why this was such a firestorm. Slavery was big in the South due to the large demand for cheap labor. Back in the colonial days that cheap labor came from the selling of slaves from Africa to the colonies. Since slavery was such a big part of southern life it was hard for them to let go of the institution when it was met with resistance. The North had slaves, but not to the extent of the South. This is probably due to colder climates and the differences between the type of crops that could be grown. The North had a larger merchant population while the South remained more agricultural.

So, for the North, it was easier for them to see the issues with slavery, and how the United States was being hypocritical with its adoption of the Constitution. (“All men are created equal”) This movement ultimately led to the Civil War, the downfall of the South, and the adoption of the Thirteenth, Fourteenth, and Fifteenth Amendments.

The Women’s Rights Movement


This movement began in Seneca Falls, New York by Elizabeth Cady Stanton and Lucretia Mott in 1848. Three hundred or so delegates attended and the congregation came to be known as the Seneca Falls Convention. During the convention those involved wrote up a declaration known as the Declaration of Sentiments and Resolutions. This document stated, “We hold these truths to be self evident: that all men and women are created equal.” Further it states how history has shown ill-will towards women due to the tyranny of men. The Declaration called for men to grant women the right to vote. Only forty or so men attended the convention.

Both the Women’s Rights movement and the Anti-Slavery movement played off of each other. They both ridiculed the current system and advocated for similar change. Women and the non-white population made up a good percentage of the overall population and the Government had no choice but to listen. It still took women 19 amendments to the Constitution to finally be able to vote.

Elizabeth Cady Stanton. Source: CP Biography

Elizabeth Cady Stanton.
Source: CP Biography

The Adoption of Three New Amendments


At the end of the Civil War three amendments were drafted and signed into law. Those amendments were the Thirteenth Amendment, the Fourteenth Amendment, and the Fifteenth Amendment. After 1877, when the Government withdrew the military from the Southern states, the Fourteenth Amendment was all but disregarded. The Fifteenth Amendment was also challenged in Southern states by creating different legislation that blocked the Black population from voting.

This legislation that furthered segregation was coined the “Jim Crow Laws.” These laws placed interracial marriage on the list of plausible crimes and that all public facilities were to be separated by color. These laws led Congress to try and pass the Civil Rights Act of 1875.The failure of the Civil Rights Act of 1875 was a big blow to civil rights and liberties.


During the 1890’s the court shifted their ideals on segregation once more with the ruling of Plessy v. Fergunson. In this case a man designated as 1/8th black violated a law that prohibited blacks and whites to specific trolley’s and train carts. There was a twenty five dollar fine for anyone who disobeyed this law. The Supreme Court ruled that this was justifiable on the basis of “separate but equal.”┬áThat means as long as it affects both sides equally then it is justified.

Influential Court Cases and Incorporation

After the “separate but equal” ruling, which angered many, a precedent was set for the continuation of civil liberties and rights, and the road was paved for a brighter future. Though that brighter future would take some time. As stated above, in today’s age in the united States, States are still not subject to all of the provisions to the National Bill of Rights. This section will give some insight into the court cases that brought about incorporation.

CBQ R.R v. Chicago

The City of Chicago took property from the CBQ R.R company and justified it by paying $1 dollar for the land. The Supreme Court ruled that just compensation was required when any government body pursues property not owned by them.

Gitlow v. New York

Benjamin Gitlow was part of the American Communist Party. He published a paper called the “Left-Wing Manifesto.” He was arrested and convicted for it as well as other communist writings. The Supreme Court affirmed the conviction. However, they did state that freedom of speech and the press is guaranteed by the Fourteenth Amendment which incorporated this provision to the states.

Near v. Minnesota

With the advancement of yellow journalism (exaggerated and crude) in Minnesota, the State passed a law called the “Public Nuisance Abatement Law.” This piece of legislation worked to suppress any material that could be considered exaggerated, malicious, or scandalous. The Supreme Court ruled that the law was unconstitutional based on the grounds that the press cannot be held by prior restraint unless there is “clearly demonstrated necessity.”



  • Amendment I: (Limits on Congress) This affords the freedom of assembly, speech, and religion. It also states a government cannot establish a religion as its main religion.
  • Amendments II, III, IV: (Limits on the Executive) This states that the Executive Branch must provide a warrant for searches an seizures, they cannot take property without just compensation, and the people have the right to bear arms.
  • Amendments V, VI, VII, VIII: (Limits on the Judiciary) A person must stand trial by grand jury if convicted of a serious crime, a trial jury will be afforded for a speedy trial, and the person convicted must be told of the charges he is convicted of. A person convicted also has the right to face his accuser. This also offers protection from double jeopardy and self-incrimination. Last, no property can be taken without just compensation and there can be no excessive punishment.
  • Amendments IX, X: (Limits on the National Government) This states that any rights not enumerated are afforded to the state or people, and that the rights in the Constitution are not the only rights afforded to the people.

Near v. Minnesota

With the advancement of yellow journalism (exaggerated and crude) in Minnesota, the State passed a law called the “Public Nuisance Abatement Law.” This piece of legislation worked to suppress any material that could be considered exaggerated, malicious, or scandalous. The Supreme Court ruled that the law was unconstitutional based on the grounds that the press cannot be held by prior restraint unless there is “clearly demonstrated necessity.”

DeJonge v. Oregon

DeJonge was a communist who spoke at a communist rally in Oregon. He was arrested on the grounds that Communist ideals incite unlawful activity. The Supreme Court reversed his conviction on the grounds that the rally was peaceful and there was no evidence of DeJonge inciting violence. This assured freedom of peaceful assembly with the statement, “Peaceable assembly for lawful discussion cannot be made a crime.”

Everson v. Board of Education

Source: ConLawElements

Source: ConLawElements

In this case New Jersey allowed for the reimbursement of parents for bus fare if their children went to a private or parochial school. This was challenged as setting a form of religion for the State. The trial court agreed, however, the decision was reversed in the state court of appeals. The Supreme Court was then asked to define what constitutes an establishment of religion. The Supreme Court ruled like the trial court did on the grounds that a State cannot pass laws which aid one religion.

Wolf v. Colorado

This case had to do with the exclusionary rule. This rule basically prohibits the use of illegally seized evidence in court. It is interesting to note that the Fourth Amendment does not specifically state an exclusionary rule. The rule, in the Fourth Amendment, only applied to federal agents and not state police. Wolf was convicted for performing abortions. The evidence against him was found in a warrantless search. The Supreme court ruled that evidence not found without a proper warrant violated the due process.

Mapp v. Ohio

Mapp was arrested when police kicked down her door claiming to have a warrant. The policeman waved a single piece of paper in her face and would not allow Mapp to read it. She got into a scuffle with the officer to see the warrant which ended up with her handcuffed. The officer then searched her house and found pornographic material in a trunk. She was booked for having obscene materials. The Supreme Court ruled in Mapp’s favor and reaffirmed the exclusionary rule from the Fourth Amendment.

Robinson v. California

There was a law in California that stated it was illegal to be “under the influence of, or be addicted to the use of narcotics.” Robinson was arrested and convicted due to needle marks on his arm. He was not under the influence at the time of arrest and they never proved he had been addicted. The Supreme Court ruled in Robinsons’ favor. The Court ruled that a state cannot deem a mental illness as illegal because it is considered cruel and unusual punishment for the sufferer of the illness.

Gideon v. Wainwright

Gideon was convicted of nonviolent crimes on circumstantial evidence. Gideon was not afforded a lawyer for his trial and was convicted with little debate due to his lack of understanding the judicial system. The Supreme Court used this case to over rule Betts v. Brady which concluded that the right to counsel can only change an outcome based on circumstance. Gideon v. Wainwright set the perfect precedent for the Court to over rule Betts and incorporate the Sixth Amendment to the States.

Gideon's Mug Shot Source: Rash Kind

Gideon’s Mug Shot
Source: Rash Kind

Malloy v. Hogan

Malloy was a witness to a gambling crime. He had been arrested before for gambling and other crimes. He rejected the attempts of police to gain further information on his background based on the idea of self incrimination that is stated in Article V of the Bill of Rights. He was sent to prison until he was willing to talk. The State had ruled that the Fifth Amendment does not apply to eye witnesses. The Supreme Court differed and ruled in favor of Malloy.

Escobedo v. Illinois

Escobedo was questioned concerning the shooting of his brother. The police would not allow him to see his attorney. Once Escobedo made statements that incriminated himself and he was charged did the police let him see his attorney. The Supreme Court ruled that any person who is questioned as if accused, without being formally charged, is allowed all protections under the Fifth Amendment.


(In regards to incorporation)

  • 1897, Chicago, Burlington, and Quincy R.R v. Chicago- Eminent domain from Article V.
  • 1925, Gitlow v. New York: Freedom of Speech from Article I.
  • 1931, Near v. Minnesota: Freedom of Press from Article I.
  • 1934, Hamilton v. Regents of the University of California: Free exercise of religion from Article I.
  • 1937, Dejonge v. Oregon: Freedom of assembly and to petition the government for a redress of grievances from Article I.
  • 1947, Everson v. Board of Education of Ewing Township: Nonestablishment of state religion in Article I.
  • 1949, Wolf v. Colorado: Freedom from unnecessary search and seizure from Article IV.
  • 1961, Mapp v. Ohio: Freedom from warrant less search and seizure from Article IV.
  • 1962, Robinson v. California: Freedom from cruel and unusual punishment from Article VIII.
  • 1963, Gideon v. Wainwright: Right to counsel any criminal trial from Article VI.
  • 1964, Malloy v. Hogan andEscobedo v. Illinois: Right against self-incrimination and forced confessions from Article V.
  • 1966, Miranda v. Arizona: Right to counsel and to remain silent from Article V.
  • 1969, Benton v. Maryland: Right against double jeopardy from Article V.
  • 2010, McDonald v. Chicago: Right to bear arms from Article II.

(Ginsberg, Pg. 118)

Sources Cited:

  • Finkelman, Paul, and Melvin I. Urofsky. “1890-1970.” Landmark Decisions of the United States Supreme Court. Washington, DC: CQ, 2008. 145-389. Print.
  • Ginsberg, Benjamin. “Chapter 3 and 4.” We the People: An Introduction to American Politics. New York: W.W. Norton, 2013. 117-96. Print.
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