[Constitution of the United States of America:  Analysis, and Interpretation - 1992 Edition ]
[Amendments to the Constitution]
[First Through Tenth Amendments - Bill of Rights]
[From the U.S. Government Printing Office, www.gpo.gov]



[[Page 951]]



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                     AMENDMENTS TO THE CONSTITUTION

                     FIRST THROUGH TENTH AMENDMENTS

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                             BILL OF RIGHTS

                               __________

                                CONTENTS

                                                                    Page
        History...................................................   955
        Formulation and Adoption..................................   955
        Bill of Rights and the States.............................   957
        The Fourteenth Amendment..................................   957
                                                          Bill of Rights

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                     FIRST THROUGH TENTH AMENDMENTS

                             Bill of Rights

        On September 12, five days before the Convention adjourned, 
Mason and Gerry raised the question of adding a bill of rights to the 
Constitution. Said Mason: ``It would give great quiet to the people; and 
with the aid of the State declarations, a bill might be prepared in a 
few hours.'' But the motion of Gerry and Mason to appoint a committee 
for the purpose of drafting a bill of rights was rejected.\1\ Again, on 
September 14, Pinckney and Gerry sought to add a provision ``that the 
liberty of the Press should be inviolably observed--.'' But after 
Sherman observed that such a declaration was unnecessary, because 
``[t]he power of Congress does not extend to the Press,'' this 
suggestion too was rejected.\2\ It cannot be known accurately why the 
Convention opposed these suggestions. Perhaps the lateness of the 
Convention, perhaps the desire not to present more opportunity for 
controversy when the document was forwarded to the States, perhaps the 
belief, asserted by the defenders of the Constitution when the absence 
of a bill of rights became critical, that no bill was needed because 
Congress was delegated none of the powers which such a declaration would 
deny, perhaps all these contributed to the rejection.\3\

        \1\2 M. Farrand, The Records of the Federal Convention of 1787, 
587-88 (rev. ed. 1937).
        \2\Id. at 617-618.
        \3\The argument most used by proponents of the Constitution was 
that inasmuch as Congress was delegated no power to do those things 
which a bill of rights would proscribe no bill of rights was necessary 
and that it might be dangerous because it would contain exceptions to 
powers not granted and might therefore afford a basis for claiming more 
than was granted. The Federalist No. 84 at 555-67 (Alexander Hamilton) 
(Modern Library ed. 1937).
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        In any event, the opponents of ratification soon made the 
absence of a bill of rights a major argument\4\ and some friends of the 
document, such as Jefferson,\5\ strongly urged amendment to in

[[Page 956]]
clude a declaration of rights.\6\ Several state conventions ratified 
while urging that the new Congress to be convened propose such 
amendments, 124 amendments in all being put forward by these States.\7\ 
Although some dispute has occurred with regard to the obligation of the 
first Congress to propose amendments, Madison at least had no doubts\8\ 
and introduced a series of proposals,\9\ which

[[Page 957]]
he had difficulty claiming the interest of the rest of Congress in 
considering. At length, the House of Representatives adopted 17 
proposals; the Senate rejected two and reduced the remainder to twelve, 
which were accepted by the House and sent on to the States\10\ where ten 
were ratified and the other two did not receive the requisite number of 
concurring States.\11\

        \4\Substantial excerpts from the debate in the country and in 
the ratifying conventions are set out in 1 B. Schwartz (ed.), The Bill 
of Rights: A Documentary History 435-620 (1971); 2 id. at 627-980. The 
earlier portions of volume 1 trace the origins of the various guarantees 
back to the Magna Carta.
        \5\In a letter to Madison, Jefferson indicated what he did not 
like about the proposed Constitution. ``First the omission of a bill of 
rights providing clearly and without the aid of sophisms for freedom of 
religion, freedom of the press, protection against standing armies, 
restriction against monopolies, the eternal and unremitting force of the 
habeas corpus laws, and trials by jury in all matters of the fact 
triable by the laws of the land and not by the law of Nations. . . . Let 
me add that a bill of rights is what the people are entitled to against 
every government on earth, general or particular, and what no just 
government should refuse, or rest on inference.'' 12 The Papers of 
Thomas Jefferson 438, 440 (J. Boyd ed. 1958). In suggested that nine 
States should ratify and four withhold ratification until amendments 
adding a bill of rights were adopted. Id. at 557, 570, 583. Jefferson 
still later endorsed the plan put forward by Massachusetts to ratify and 
propose amendments. 14 id. at 649.
        \6\Thus, George Washington observed in letters that a ratified 
Constitution could be amended but that making such amendments conditions 
for ratification was ill-advised. 11 The Writings of George Washington 
249 (W. Ford ed. 1891).
        \7\2 B. Schwartz (ed.), The Bill of Rights: A Documentary 
History 627-980 (1971). See also H. Ames, The Proposed Amendments to the 
Constitution 19 (1896).
        \8\Madison began as a doubter, writing Jefferson that while 
``[m]y own opinion has always been in favor of a bill of rights,'' still 
``I have never thought the omission a material defect, nor been anxious 
to supply it even by subsequent amendment. . . .'' 5 The Writings of 
James Madison 269. (G. Hunt ed. 1904). His reasons were four. (1) The 
Federal Government was not granted the powers to do what a bill of 
rights would proscribe. (2) There was reason ``to fear that a positive 
declaration of some of the most essential rights could not be obtained 
in the requisite latitude. I am sure that the rights of conscience in 
particular, if submitted to public definition would be narrowed much 
more than they are likely ever to be by an assumed power.'' (3) A 
greater security was afforded by the jealousy of the States of the 
national government. (4) ``[E]xperience proves the inefficacy of a bill 
of rights on those occasions when its controul is most needed. Repeated 
violations of these parchment barriers have been committed by 
overbearing majorities in every State. . . . Wherever the real power in 
a Government lies, there is the danger of oppression. In our Governments 
the real power lies in the majority of the Community, and the invasion 
of private rights is chiefly to be apprehended, not from acts of 
Government contrary to the sense of its constituents, but from acts in 
which the Government is the mere instrument of the major number of the 
Constituents. . . . Wherever there is a interest and power to do wrong, 
wrong will generally be done, and not less readily by a powerful & 
interested party than by a powerful and interested prince.'' Id. at 272-
73. Jefferson's response acknowledged the potency of Madison's 
reservations and attempted to answer them, in the course of which he 
called Madison's attention to an argument in favor not considered by 
Madison ``which has great weight with me, the legal check which it puts 
into the hands of the judiciary. This is a body, which if rendered 
independent, and kept strictly to their own department merits great 
confidence for their learning and integrity.'' 14 The Papers of Thomas 
Jefferson 659 (J. Boyd ed. 1958). Madison was to assert this point when 
he introduced his proposals for a bill of rights in the House of 
Representatives. 1 Annals of Congress 439 (June 8, 1789).
        In any event, following ratification, Madison in his successful 
campaign for a seat in the House firmly endorsed the proposal of a bill 
of rights. ``[I]t is my sincere opinion that the Constitution ought to 
be revised, and that the first Congress meeting under it ought to 
prepare and recommend to the States for ratification, the most 
satisfactory provisions for all essential rights, particularly the 
rights of Conscience in the fullest latitude, the freedom of the press, 
trials by jury, security against general warrants &c.'' 5 The Writings 
of James Madison 319 (G. Hunt ed. 1904).
        \9\1 Annals of Congress 424-50 (June 8, 1789). The proposals as 
introduced are at pp. 433-36. The Members of the House were indisposed 
to moving on the proposals.
        \10\Debate in the House began on July 21, 1789, and final 
passage was had on August 24, 1789. 1 Annals of Congress 660-779. The 
Senate considered the proposals from September 2 to September 9, but no 
journal was kept. The final version compromised between the House and 
Senate was adopted September 24 and 25. See 2 B. Schwartz, (ed.), The 
Bill of Rights: A Documentary History 983-1167 (1971).
        \11\The two not ratified dealt with the ratio of population to 
representatives and with compensation of Members of Congress. H. Ames, 
The Proposed Amendments to the Constitution 184, 185 (1896). The latter 
proposal was ratified in 1992 as the 27th Amendment.
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        Bill of Rights and the States.--One of the amendments which the 
Senate refused to accept--declared by Madison to be ``the most valuable 
of the whole list''\12\--read: ``The equal rights of conscience, the 
freedom of speech or of the press, and the right of trial by jury in 
criminal cases shall not be infringed by any State.''\13\ In spite of 
this rejection, the contention that the Bill of Rights--or at least the 
first eight--was applicable to the States was repeatedly pressed upon 
the Supreme Court. By a long series of decisions, beginning with the 
opinion of Chief Justice Marshall in Barron v. Baltimore,\14\ the 
argument was consistently rejected. Nevertheless, the enduring vitality 
of natural law concepts encouraged renewed appeals for judicial 
protection through application of the Bill of Rights.\15\

        \12\1 Annals of Congress 755 (August 17, 1789).
        \13\Id.
        \14\32 U.S. (7 Pet.) 243 (1833). See also Livingston's Lessee v. 
Moore, 32 U.S. (7 Pet.) 469 (1833); Permoli v. First Municipality, 44 
U.S. (3 How.) 589, 609 (1845); Fox v. Ohio, 46 U.S. (5 How.) 410 (1847); 
Smith v. Maryland, 59 U.S. (18 How.) 71 (1855); Withers v. Buckley, 61 
U.S. (20 How.) 84 (1858); Pervear v. Massachusetts, 72 U.S. (5 Wall.) 
475 (1867); Twitchell v. Commonwealth, 74 U.S. (7 Wall.) 321 (1869).
        \15\Thus, Justice Miller for the Court in Loan Association v. 
Topeka, 87 U.S. (20 Wall.) 655, 662, 663 (1875): ``It must be conceded 
that there are . . . rights in every free government beyond the control 
of the State . . . There are limitations on [governmental] power which 
grow out of the essential nature of all free governments. Implied 
reservations of individual rights, without which the social compact 
could not exist, and which are respected by all governments entitled to 
the name.''
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        The Fourteenth Amendment.--Following the ratification of the 
Fourteenth Amendment, litigants disadvantaged by state laws and policies 
first resorted unsuccessfully to the privileges and immunities clause of 
Sec. 1 for judicial protection.\16\ Then, claimants seized upon the due 
process clause of the Fourteenth Amendment as guaranteeing certain 
fundamental and essential safeguards,

[[Page 958]]
without pressing the point of the applicability of the Bill of 
Rights.\17\ It was not until 1887 that a litigant contended that, 
although the Bill of Rights had not limited the States, yet so far as 
they secured and recognized the fundamental rights of man they were 
privileges and immunities of citizens of the United States and were now 
protected against state abridgment by the Fourteenth Amendment.\18\ This 
case the Court decided on other grounds, but in a series of subsequent 
cases it confronted the argument and rejected it,\19\ though over the 
dissent of the elder Justice Harlan, who argued that the Fourteenth 
Amendment in effect incorporated the Bill of Rights and made them 
effective restraints on the States.\20\ Until 1947, this dissent made no 
headway,\21\ but in Ad

[[Page 959]]
amson v. California\22\ a minority of four Justices were marshalled 
behind Justice Black, who contended that his researches into the history 
of the Fourteenth Amendment left him in no doubt ``that the language of 
the first section of the Fourteenth Amendment, taken as a whole, was 
thought by those responsible for its submission to the people, and by 
those who opposed its submission, sufficiently explicit to guarantee 
that thereafter no state could deprive its citizens of the privileges 
and protections of the Bill of Rights.''\23\ Scholarly research 
stimulated by Justice Black's view tended to discount the validity of 
much of the history recited by him and to find in the debates in 
Congress and in the ratifying conventions no support for his 
contention.\24\ Other scholars, going beyond the immediate debates, 
found in the pre- and post-Civil War period a substantial body of 
abolitionist constitutional thought which could be shown to have greatly 
influenced the principal architects, and observed that all three 
formulations of Sec. 1, privileges and immunities, due process, and 
equal protection, had long been in use as shorthand descriptions for the 
principal provisions of the Bill of Rights.\25\

        \16\Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873).
        \17\Walker v. Sauvinet, 92 U.S. 90 (1876); United States v. 
Cruikshank, 92 U.S. 542 (1876); Hurtado v. California, 110 U.S. 516 
(1884); Presser v. Illinois, 116 U.S. 252 (1886). In Hurtado, in which 
the Court held that indictment by information rather than by grand jury 
did not offend due process, the elder Justice Harlan entered a long 
dissent arguing that due process preserved the fundamental rules of 
procedural justice as they had existed in the past, but he made no 
reference to the possibility that the Fourteenth Amendment due process 
clause embodied the grand jury indictment guarantee of the Fifth 
Amendment.
        \18\Spies v. Illinois, 123 U.S. 131 (1887).
        \19\In re Kemmler, 136 U.S. 436 (1890); McElvaine v. Brush, 142 
U.S. 155 (1891); O'Neil v. Vermont, 144 U.S. 323 (1892).
        \20\In O'Neil v. Vermont, 144 U.S. 323, 370 (1892), Justice 
Harlan, with Justice Brewer concurring, argued ``that since the adoption 
of the Fourteenth Amendment, no one of the fundamental rights of life, 
liberty or property, recognized and guaranteed by the Constitution of 
the United States, can be denied or abridged by a State in respect to 
any person within its jurisdiction. These rights are, principally, 
enumerated in the earlier Amendments of the Constitution.'' Justice 
Field took the same position. Id. at 337. Thus, he said: ``While 
therefore, the ten Amendments, as limitations on power, and so far as 
they accomplish their purpose and find their fruition in such 
limitations, are applicable only to the Federal government and not to 
the States, yet, so far as they declare or recognize the rights of 
persons, they are rights belonging to them as citizens of the United 
States under the Constitution; and the Fourteenth Amendment, as to all 
such rights, places a limit upon state power by ordaining that no State 
shall make or enforce any law which shall abridge them.'' Id. at 363. 
Justice Harlan reasserted this view in Maxwell v. Dow, 176 U.S. 581, 605 
(1900) (dissenting opinion), and in Twining v. New Jersey, 211 U.S. 78, 
114 (1908) (dissenting opinion). Justice Field was no longer on the 
Court and Justice Brewer did not in either case join Justice Harlan as 
he had done in O'Neil.
        \21\Cf. Palko v. Connecticut, 302 U.S. 319, 323 (1937), in which 
Justice Cardozo for the Court, including Justice Black, said: ``We have 
said that in appellant's view the Fourteenth Amendment is to be taken as 
embodying the prohibitions of the Fifth. His thesis is even broader. 
Whatever would be a violation of the original bill of rights (Amendments 
I to VIII) if done by the federal government is now equally unlawful by 
force of the Fourteenth Amendment if done by a state. There is no such 
general rule.'' See Frankfurter, Memorandum on ``Incorporation'' of the 
Bill of Rights Into the Due Process Clause of the Fourteenth Amendment, 
78 Harv. L. Rev. 746 (1965). According to Justice Douglas' calculations, 
ten Justices had believed that the Fourteenth Amendment incorporated the 
Bill of Rights, but a majority of the Court at any one particular time 
has never been of that view. Gideon v. Wainwright, 372 U.S. 355, 345-47 
(1963) (concurring opinion). See also Malloy v. Hogan, 378 U.S. 1, 4 n.2 
(1964). It must be said, however that many of these Justices were not 
consistent in asserting this view. Justice Goldberg probably should be 
added to the list. Pointer v. Texas, 380 U.S. 400, 410-14 (1965) 
(concurring opinion).
        \22\332 U.S. 46 (1947).
        \23\Id. at 74, Justice Black's contentions, id. at 68-123, were 
concurred in by Justice Douglas. Justices Murphy and Rutledge also 
joined this view but went further. ``I agree that the specific 
guarantees of the Bill of Rights should be carried over intact into the 
first section of the Fourteenth Amendment. But I am not prepared to say 
that the latter is entirely and necessarily limited by the Bill of 
Rights. Occasions may arise where a proceeding falls so far short of 
conforming to fundamental standards of procedure as to warrant 
constitutional condemnation in terms of a lack of due process despite 
the absence of a specific provision in the Bill of Rights.'' Id. at 124. 
Justice Black rejected this extension as an invocation of ``natural law 
due process.'' For examples in which he and Justice Douglas split over 
the application of nonspecified due process limitations, see, e.g., 
Griswold v. Connecticut, 381 U.S. 479 (1965); In re Winship, 397 U.S. 
358 (1970).
        \24\The leading piece is Fairman, Does the Fourteenth Amendment 
Incorporate the Bill of Rights? 2 Stan. L. Rev. 5 (1949).
        \25\Graham, Early Antislavery Backgrounds of the Fourteenth 
Amendment, 1950 Wisc. L. Rev. 479, 610; Graham, Our ``Declaratory'' 
Fourteenth Amendment, 7 Stan. L. Rev. 3 (1954); J. tenBroek, Equal Under 
Law (1965 enlarged ed.). The argument of these scholars tends to support 
either a ``selective incorporation'' theory or a fundamental rights 
theory, but it emphasized the abolitionist stress on speech and press as 
well as on jury trials as included in either construction.
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        Unresolved perhaps in theory, the controversy in fact has been 
mostly mooted through the ``selective incorporation'' of a majority of 
the provisions of the Bill of Rights.\26\ This process seems to have

[[Page 960]]
had its beginnings in an 1897 case in which the Court, without 
mentioning the just compensation clause of the Fifth Amendment, held 
that the Fourteenth Amendment's due process clause forbade the taking of 
private property without just compensation.\27\ Then, in Twining v. New 
Jersey\28\ the Court observed that ``it is possible that some of the 
personal rights safeguarded by the first eight amendments against 
National action may also be safeguarded against state action, because a 
denial of them would be a denial of due process of law . . . . If this 
is so, it is not because those rights are enumerated in the first eight 
amendments, but because they are of such nature that they are included 
in the conception of due process of law.'' And in Gitlow v. New 
York,\29\ the Court in dictum said: ``For present purposes we may and do 
assume that freedom of speech and of the press--which are protected by 
the First Amendment from abridgment by Congress--are among the 
fundamental personal rights and `liberties' protected by the due process 
clause of the Fourteenth Amendment from impairment by the States.'' 
After quoting the language set out above from Twining v. New Jersey, the 
Court in 1932 said that ``a consideration of the nature of the right and 
a review of the expressions of this and other courts, makes it clear 
that the right to the aid of counsel is of this fundamental 
character.''\30\ The doctrine of this period was best formulated by 
Justice Cardozo, who observed that the due process clause of the 
Fourteenth Amendment might proscribe a certain state procedure, not 
because the proscription was spelled out in one of the first eight 
amendments, but because the procedure ``offends some principle of 
justice so rooted in the traditions and conscience of our people as to 
be ranked as fundamental,''\31\ because certain proscriptions were 
``implicit in the concept of ordered `liberty.'''\32\

[[Page 961]]
As late as 1958, Justice Harlan was able to assert in an opinion of the 
Court that a certain state practice fell afoul of the Fourteenth 
Amendment because ``[i]t is beyond debate that freedom to engage in 
association for the advancement of beliefs and ideas is an inseparable 
aspect of the `liberty' assured by the Due Process Clause of the 
Fourteenth Amendment, which embraces freedom of speech . . . .''\33\

        \26\Williams v. Florida, 399 U.S. 78, 130-32 (1970) (Justice 
Harlan concurring in part and dissenting in part). The language of this 
process is somewhat abstruse. Justice Frankfurter objected strongly to 
``incorporation'' but accepted other terms. ``The cases say the First 
[Amendment] is `made applicable' by the Fourteenth or that it is taken 
up into the Fourteenth by `absorption,' but not that the Fourteenth 
`incorporates' the First. This is not a quibble. The phrase `made 
applicable' is a neutral one. The concept of `absorption' is a 
progressive one, i.e., over the course of time something gets absorbed 
into something else. The sense of the word `incorporate' implies 
simultaneity. One writes a document incorporating another by reference 
at the time of the writing. The Court has used the first two forms of 
language, but never the third.'' Frankfurter, Memorandum on 
`Incorporation' of the Bill of Rights Into the Due Process Clause of the 
Fourteenth Amendment, 78 Harv. L. Rev. 746, 747-48 (1965). It remains 
true that no opinion of the Court has used ``incorporation'' to describe 
what it is doing, cf. Washington v. Texas, 388 U.S. 14, 18 (1967); 
Benton v. Maryland, 395 U.S. 784, 794 (1969), though it has regularly 
been used by dissenters. E.g., Pointer v. Texas, 380 U.S. 400, 408 
(1965) (Justice Harlan); Williams v. Florida, 399 U.S. 78, 130 (1970) 
(Justice Harlan); Williams v. Florida, supra, 143 (Justice Stewart).
        \27\Chicago, B. & Q. R.R. v. City of Chicago, 166 U.S. 226 
(1897).
        \28\211 U.S. 78, 99 (1908).
        \29\268 U.S. 652, 666 (1925).
        \30\Powell v. Alabama, 287 U.S. 45, 68 (1932).
        \31\Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).
        \32\Palko v. Connecticut, 302 U.S. 319, 325 (1937). Justice 
Frankfurter was a strong advocate of this approach to the Fourteenth 
Amendment's due process clause. E.g., Rochin v. California, 342 U.S. 165 
(1952); Adamson v. California, 332 U.S. 46, 59 (1947) (concurring 
opinion). Justice Harlan followed him in this regard. E.g., Benton v. 
Maryland, 395 U.S. 784, 801 (1969) (dissenting opinion); Williams v. 
Florida, 399 U.S. 78, 117 (1970) (concurring in part and dissenting in 
part). For early applications of the principles to void state practices, 
see Moore v. Dempsey, 261 U.S. 86 (1923); Meyer v. Nebraska, 262 U.S. 
390 (1923); Tumey v. Ohio, 273 U.S. 510 (1927); Powell v. Alabama, 287 
U.S. 45 (1932); Mooney v. Holohan, 294 U.S. 103 (1935); Brown v. 
Mississippi, 297 U.S. 278 (1936); Rochin v. California, supra.
        \33\NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 
(1958).
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        But this process of ``absorption'' into due process of rights 
which happened also to be specifically named in the Bill of Rights came 
to be supplanted by a doctrine which had for a time coexisted with it, 
the doctrine of ``selective incorporation.'' This doctrine holds that 
the due process clause incorporates the text of certain of the 
provisions of the Bill of Rights. Thus in Malloy v. Hogan,\34\ Justice 
Brennan was enabled to say: ``We have held that the guarantees of the 
First Amendment, . . . the prohibition of unreasonable searches and 
seizures of the Fourth Amendment, . . . and the right to counsel 
guaranteed by the Sixth Amendment, . . . are all to be enforced against 
the States under the Fourteenth Amendment according to the same 
standards that protect those personal rights against federal 
encroachment.'' And Justice Clark was enabled to say: ``First, this 
Court has decisively settled that the First Amendment's mandate that 
`Congress shall make no law respecting an establishment of religion, or 
prohibiting the free exercise thereof' has been made wholly applicable 
to the States by the Fourteenth

[[Page 962]]
Amendment.''\35\ Similar language asserting that particular provisions 
of the Bill of Rights have been applied to the States through the 
Fourteenth Amendment's due process clause may be found in numerous 
cases.\36\ Most of the provisions have now been so applied.\37\

        \34\378 U.S. 1, 10 (1964). In Washington v. Texas, 388 U.S. 14, 
18 (1967), Chief Justice Warren for the Court said that the Court has 
``increasingly looked to the specific guarantees of the [Bill of Rights] 
to determine whether a state criminal trial was conducted with due 
process of law.'' And in Benton v. Maryland, 395 U.S. 784, 794 (1969), 
Justice Marshall for the Court wrote: ``[W]e today find that the double 
jeopardy prohibition of the Fifth Amendment represents a fundamental 
ideal in our constitutional heritage, and that it should apply to the 
States through the Fourteenth Amendment.'' In this process, the Court 
has substantially increased the burden of showing that a procedure is 
fundamentally fair as carried by those who would defend a departure from 
the requirement of the Bill of Rights. That is, previously the Court has 
asked whether a civilized system of criminal justice could be imagined 
that did not accord the particular procedural safeguard. E.g., Palko v. 
Connecticut, 302 U.S. 319, 325 (1937). The present approach is to 
ascertain whether a particular guarantee is fundamental in the light of 
the system existent in the United States, which can make a substantial 
difference. Duncan v. Louisiana, 391 U.S. 145, 149 n.14 (1968). Quaere, 
the approach followed in Williams v. Florida, 399 U.S. 78 (1970), and 
Apodaca v. Oregon, 406 U.S. 404 (1972).
        \35\Abington School District v. Schempp, 374 U.S. 203, 215 
(1963). Similar formulations for the speech and press clauses appeared 
early. E.g., West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 
639 (1943); Schneider v. Irvington, 308 U.S. 147, 160 (1939). In Griffin 
v. California, 380 U.S. 609, 615 (1965), Justice Douglas stated the 
holding as ``that the Fifth Amendment, in its direct application to the 
Federal Government, and in its bearing on the States by reason of the 
Fourteenth Amendment, forbids'' the state practice at issue.
        \36\E.g., Mapp v. Ohio, 367 U.S. 643 (1961); Klopfer v. North 
Carolina, 386 U.S. 213 (1967); Duncan v. Louisiana, 391 U.S. 145 (1968); 
Ashe v. Swenson, 397 U.S. 436 (1970); Baldwin v. New York, 399 U.S. 66 
(1970).
        \37\The following list does not attempt to distinguish between 
those Bill of Rights provisions which have been held to have themselves 
been incorporated or absorbed by the Fourteenth Amendment and those 
provisions which the Court indicated at the time were applicable against 
the States because they were fundamental and not merely because they 
were named in the Bill of Rights. Whichever formulation was originally 
used, the former is now the one used by the Court. Duncan v. Louisiana, 
391 U.S. 145, 148 (1968).
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      First Amendment--
        Religion--
          Free exercise: Hamilton v. Regents, 293 U.S. 245, 262 (1934); 
Cantwell v. Connecticut, 310 U.S. 296, 300, 303 (1940).
          Establishment: Everson. v. Board of Education, 330 U.S. 1, 3, 
7, 8 (1947); Illinois ex rel. McCollum v. Board of Education, 333 U.S. 
203 (1948).
        Speech--Gitlow v. New York, 268 U.S. 652, 666 (1925); Fiske v. 
Kansas, 274 U.S. 380 (1927); Stromberg v. California, 283 U.S. 359 
(1931).
        Press--Near v. Minnesota ex rel. Olson, 283 U.S. 697, 701 
(1931).
        Assembly--DeJonge v. Oregon, 299 U.S. 353 (1937).
        Petition--DeJonge v. Oregon, supra, 364, 365; Hague v. CIO, 307 
U.S. 496 (1939); Bridges v. California, 314 U.S. 252 (1941).
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      Fourth Amendment--
        Search and seizure--Wolf v. Colorado, 338 U.S. 25 (1949); Mapp 
v. Ohio, 367 U.S. 643 (1961).
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      Fifth Amendment--
        Double jeopardy--Benton v. Maryland, 395 U.S. 784 (1969); Ashe 
v. Swenson, 397 U.S. 436 (1970) (collateral estoppel).
        Self-incrimination--Malloy v. Hogan, 378 U.S. 1 (1964); Griffin 
v. California, 380 U.S. 609 (1965).
        Just compensation--Chicago, B. & Q. R.R. v. City of Chicago, 166 
U.S. 226 (1897).
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      Sixth Amendment--
        Speedy trial--Klopfer v. North Carolina, 386 U.S. 213 (1967).
        Public trial--In re Oliver, 333 U.S. 257 (1948).
        Jury trial--Duncan v. Louisiana, 391 U.S. 145 (1968).
        Impartial Jury--Irvin v. Dowd, 366 U.S. 717 (1961); Turner v. 
Louisiana, 379 U.S. 466 (1965).
        Notice of charges--In re Oliver, 333 U.S. 257 (1948).
        Confrontation--Pointer v. Texas, 380 U.S. 400 (1965); Douglas v. 
Alabama, 380 U.S. 415 (1965).
        Compulsory process--Washington v. Texas, 388 U.S. 14 (1967).
        Counsel--Powell v. Alabama, 287 U.S. 45 (1932); Gideon v. 
Wainwright, 372 U.S. 335 (1963).
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      Eighth Amendment--
        Cruel and unusual punishment--Louisiana ex rel. Francis v. 
Resweber, 329 U.S. 459 (1947); Robinson v. California, 370 U.S. 660 
(1962).
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      Provisions not applied are:
      Second Amendment--
        Right to keep and bear arms--Cf. United States v. Cruikshank, 92 
U.S. 542, 553 (1876); Presser v. Illinois, 116 U.S. 252, 265 (1886).
---------------------------------------------------------------------------
      Third Amendment--
        Quartering troops in homes--No cases.
---------------------------------------------------------------------------
      Fifth Amendment--
        Grand Jury indictment--Hurtado v. California, 110 U.S. 516 
(1884).
---------------------------------------------------------------------------
      Seventh Amendment--
        Jury trial in civil cases in which value of controversy exceeds 
$20--Cf. Adamson v. California, 332 U.S. 46, 64-65 (1947) (Justice 
Frankfurter concurring). See Minneapolis & St. L. R.R. v. Bombolis, 241 
U.S. 211 (1916).
---------------------------------------------------------------------------
      Eighth Amendment--
        Bail--But see Schilb v. Kuebel, 404 U.S. 357, 365 (1971).
        Excessive Fines--But see Tate v. Short, 401 U.S. 395 (1971) 
(utilizing equal protection to prevent automatic jailing of indigents 
when others can pay a fine and avoid jail).

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[[Page 963]]

        Aside from the theoretical and philosophical considerations 
which enter into the question whether the Bill of Rights is incorporated 
into the Fourteenth Amendment or whether due process subsumes certain 
fundamental rights which may be named in the Bill of Rights, the 
principal relevant controversy is whether, once a guarantee or a right 
set out in the Bill of Rights is held to be a limitation on the States, 
the same standards which restrict the Federal Government restrict the 
States. The majority of the Court has consistently held that the 
standards are identical, whether the Federal Government or a State is 
involved,\38\ and ``has rejected the notion that the Fourteenth 
Amendment applies to the State only a `watered-down, subjective version 
of the individual guarantees of the Bill of Rights.'''\39\ Those who 
have argued for the application of a dual-standard test of due process 
as between the Federal Government and the States, most notably Justice 
Harlan,\40\ but includ

[[Page 964]]
ing Justice Stewart,\41\ Justice Fortas,\42\ Justice Powell,\43\ and 
Justice Rehnquist,\44\ have not only based their contentions on a 
rejection of actual incorporation but upon the ground as well that if 
the same standards are to apply the standards previously developed with 
the Federal Government in mind will have to be diluted in order to give 
the States more leeway in the operation of their criminal justice 
systems.\45\ The latter result seems to have developed with regard to 
issues surrounding the interpretation of the jury trial guarantee of the 
Sixth Amendment.\46\

        \38\Malloy v. Hogan, 378 U.S. 1, 10-11 (1964); Ker v. 
California, 374 U.S. 23 (1963); Griffin v. California, 380 U.S. 609 
(1965); Baldwin v. New York, 399 U.S. 66 (1970); Williams v. Florida, 
399 U.S. 78 (1970); Ballew v. Georgia, 435 U.S. 223 (1978); First 
National Bank of Boston v. Bellotti, 435 U.S. 765, 780 n.16 (1978) 
(specifically the First Amendment speech and press clauses); Crist v. 
Bretz, 437 U.S. 28 (1978); Burch v. Louisiana, 441 U S. 130 (1979).
        \39\Williams v. Florida, 399 U.S. 78, 106-107 (1970) (Justice 
Black concurring in part and dissenting in part), quoting Malloy v. 
Hogan, 378 U.S. 1, 10-11 (1964).
        \40\Justice Harlan first took this position in Roth v. United 
States, 354 U.S. 476, 496 (1957) (concurring in part and dissenting in 
part). See also Ker v. California, 374 U.S. 23, 45-46 (1963) 
(concurring). His various opinions are collected in Williams v. Florida, 
399 U.S. 78, 129-33 (1970) (concurring in part and dissenting in part).
        \41\Williams v. Florida, 399 U.S. 78, 143-45 (1970) (concurring 
in part and dissenting in part); Duncan v. Louisiana, 391 U.S. 145, 173-
83 (1968) (Justices Harlan and Stewart dissenting). But see Apodaca v. 
Oregon, 406 U.S. 404, 414 (1972) (dissenting). See also Crist v. Bretz, 
437 U.S. 28 (1978) (Justice Stewart writing opinion of the Court).
        \42\Bloom v. Illinois, 391 U.S. 194, 211 (1968) (concurring).
        \43\Johnson v. Louisiana, 406 U.S. 356, 366 (1972) (concurring); 
Crist v. Bretz, 437 U.S. 28, 52-53 (1978) (dissenting, joined by Chief 
Justice Burger and Justice Rehnquist). But see First National Bank of 
Boston v. Bellotti, 435 U.S. 765, 780 n.16 (1978) (rejecting theory in 
First Amendment context in opinion for the Court, joined by Chief 
Justice Burger).
        \44\Buckley v. Valeo, 424 U.S. 1, 290 (1976) (concurring in part 
and dissenting in part); First National Bank of Boston v. Bellotti, 435 
U.S. 765, 822 (1978) (dissenting). See also Crist v. Bretz, 437 U.S. 28, 
52-53 (1978) (joining Justice Powell's dissent). Justice Jackson was 
also apparently of this view. Beauharnais v. Illinois, 343 U.S. 250, 288 
(1952) (dissenting).
        \45\E.g., Williams v. Florida, 399 U.S. 78, 129-38 (1970) 
(Justice Harlan concurring in part and dissenting in part); Bloom v. 
Illinois, 391 U.S. 194, 213-215 (1968) (Justice Fortas concurring). But 
see Williams v. Florida, supra, 106-08 (Justice Black concurring in part 
and dissenting in part).
        \46\Williams v. Florida, 399 U.S. 78 (1970); Apodaca v. Oregon, 
406 U.S. 404 (1972). But cf. Ballew v. Georgia, 435 U.S. 223 (1978).