Fourteenth Amendment
Selective Incorporation

Ironically the First Fourteenth Amendment

On June 8, 1789 James Madison delivered his long awaited list of proposed amendments to the House of Representatives. After several debates scattered throughout the summer the following is a partial list of the amendments that was passed by the House of Representative and sent on to the Senate.

Note especially Article the Fourteenth. That article, passed by the necessary number of votes called for selective incorporation against the state some of the other Articles. This particular article was defeated in the Senate after secret debate and a secret vote. It must be remember at this particular point in time in American History, the House of Representative represented "the people." It's members were elected directly by the people. The Senate, on the other hand, represented the states. It's members were selected by the state legislatures.

It is ironic that this particular Article was numbered fourteen and that it called for selective incorporation of other amendments in the "Bill of Rights package" against the states. It is interesting that it was passed by "the people's" representatives, but defeated by the state's representatives. It is very ironic that another Article also numbered fourteen was passed some 79 or so years later and that it would, in time be used to selectively incorporate other Articles of the "Bill of Rights package" against the states.

August 17, 1789-- First Federal Congress (Amendments)

The committee then proceeded to the fifth proposition:

Article I, Section 10 between the first and second paragraph, insert 'No state shall infringe the equal rights of conscience, nor the freedom of speech or of the press, nor of the right of trial by jury in criminal cases.'

Mr. TUCKER this is offered, I presume, as an amendment to the constitution of the United States, but it goes only to the alteration of constitutions of particular states. It will be much better, I apprehend, to leave the state governments to themselves, and not to interfere with them more than we already do; and that is thought by many to be rather too much. I therefore move, Sir, to strike out these words.

Mr. MADISON conceives this to be the most valuable amendment in the whole list. If there were any reason to restrain the government of the United States from infringing upon these essential rights, it was equally necessary that they should be secured against the state governments. He thought that if they provided against one, it was as necessary to provide against the other, and it was satisfied that it would be equally grateful to the people.

Mr. LIVERMORE had no great objection to the sentiment, but he thought it not well expressed. He wished to make it an affirmative proposition; '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.'

This transposition being agreed to, and MR. TUCKER'S motion being rejected, the clause was adopted. (In the final wording of the amendments that was sent to the Senate the transposition had not taken place. No reason for that mistake is recorded.)

Source of Information:

The Debates and Proceedings in the Congress of the United States (Annals of Congress), Joseph Gales. Gales and Seaton, Washington, 1834, August 17, 1789, Vol I pp 749-756.

August 24, 1789

Source of Information:

Creating the Bill of Rights, The Documentary Record from the First Federal Congress, Edited by Helen E. Veit, Kenneth R. Bowling, Charlene Bangs Bickford, The John Hopkins University Press, Baltimore and London, 1991, pp 37-41.

1868

AMENDMENT XIV

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Section 2. Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state. Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void. Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

1897

Chicago, Burlington & Quincy Railroad Co. v. Chicago, 166 U.S. 226 (1897) Right to just Compensation of the 5th Amendment was incorporated using the Fourteenth Amendment.

Source of Information:

The Evolving Constitution, How the Supreme Court Has Ruled on Issues from Abortion to Zoning. By Jethro K. Lieberman, Random House (1992) pp 260, 670.

March 1, 1897

In a second ruling announced that day, Chicago, Burlington & Quincy Railroad Co. v. Chicago, The court in a business context acknowledged that some of the guarantees of the Bill of Rights might be of such a nature as to be included in the Fourteenth Amendment's guarantee of due process.

Source of Information:

The Supreme Court at Work, Second edition, Joan Biskupic, Elder Witt, Congressional Quarterly, (1997), pp 31.

1898

The General Principles of Constitutional Law in The United States

SECTION L-- Religious Liberty

The Constitution -- The Constitution as originally adopted declared that "no religious test shall ever be required as a qualification to any office or public trust under tile United States." By amendment it was further provided that "Congress shall make no law respecting an Establishment of religion, or prohibiting the free exercise thereof," Both these provisions, it; will be seen are limitations upon the powers of Congress only. Neither' the original Constitution nor any of the early amendments undertook to protect the religions. liberty of the people of the States against the action of their respective state governments. The fourteenth- amendment is perhaps; broad enough to give some securities if they should be needful.[emphasis added]

Source of Information:

The General Principles of Constitutional Law in the United States of America, By Thomas M. Cooley, LL.D., Third Edition, Andrew C. McLaughlin, A.M., L.L B. [Professor of American History, University of Michigan] Little, Brown, and Company 1898, pp 224-227)

A. The Fourteenth Amendment Limited

The central purpose of the Thirteenth (1865), Fourteenth (1868), and Fifteenth(1870) Amendments - sometimes called the "Civil War" or "Reconstruction" amendments - was to prevent discriminatory treatment of the recently emancipated slaves. Within a decade of the Civil War, lawyers nonetheless invoked the expansive phrases of the Fourteenth Amendment to constrain state regulation in business matters. In the slaughter-House Cases - the first decision to construe the amendment - the Court unequivocally refused to use it for this purpose.

. . .

4. The original understanding of the Fourteenth Amendment. Compare justice Miller's characterization of the "one pervading purpose" of the Reconstruction amendments with justice Bradley's broader description of "the mischief to be remedied." Bradley is correct that, in reaction to threats to the institution of slavery, Confederate states had egregiously infringed civil liberties and that this had been a source of national concern.' Although the congressional debates over the Fourteenth Amendment reveal only vague, conflicting, and self-contradictory statements about its purpose and scope,' the clear focus was on racial discrimination, not on civil liberties as such. On the other hand, the language of the Fourteenth Amendment was not limited to racial concerns, and some of its phrases had been used expansively in the debates over slavery preceding the Civil War. Abolitionists indiscriminately invoked natural law, the Bill of Rights, "the inherent rights of citizens," the rights to "protection of the laws" and against the "deprivation of liberty without due process of law" to urge that slavery violated the Constitution.' As Dred Scott indicates, apologists for slavery countered in similar terms.

B. Pressures for Intervention and the Rise of Substantive Due Process, 1874-1890

Commenting on appellant's due process claim in Davidson v. New Orleans, supra, justice Miller wrote:

There . . . exists some strange misconception of the scope of this provision as found in the fourteenth amendment. In fact, it would seem, from the character of many of the cases before us, and in the arguments made in them, that the clause . . . is looked upon as a means of bringing to . . . this court the abstract opinion of every unsuccessful litigant in a State court of the justice of the decision against him, and of the merits of the legislation on which such a decision may be founded.

Miller attributed a purely procedural meaning to the clause, inducing justice Bradley, who otherwise agreed with the "conclusion and general tenor" of the opinion, to comment that "it narrows the scope of inquiry as to what is due process of law more than it should do."

- Although the Court resisted making substantive use of the due process clause for the next 15 years, by 1890 it essentially embraced the theory of Justice Bradley's dissent in the Slaughter-House Cases. The history of this transformational and the period that followed can be viewed from a variety of perspectives. After briefly describing the rise of economic regulation and the corporate Bar's response to it, we reproduce Lochner v New York which has come to be the symbol of the era of substantive due process. Following Lochner, we raise some 'further questions about the social and intellectual context in which it was decided.

Source of Information:

Processes of Constitutional Decisionmaking Cases and Materials, Second Edition, Paul Brest, Sanford Levinson. Law School Casebook Series, Little, Brown and Company, (1983) pp. 195, 209-211 [This was the text book used to teach Constitutional Law at the University of Virginia School of Law from the 80's into the 90's.]

Jim,

I was debating Church State issues on the Prodigy News BB http://cmty.prodigy.net, under Constitutional Issues. The real debate, it seems, is over Fourteenth Amendment incorporation and, frankly, the other side has an arguable historical case. My personal opinion is that the framers of the Fourteenth Amendment did intend to incorporate the Establishment Clause and make it applicable to the states, but they intended to do so under the privileges and immunities clause of the Fourteenth Amendment, not due process. Then the Supreme Court gave a narrow construction of privileges and immunities in the Slaughterhouse Cases, so it was necessary for future courts to either overrule the Slaughterhouse Cases, which they have not done, or do what Congress intended in the first place, but under the due process clause. Of course, by the time the Fourteenth Amendment was ratified every state had disestablished its official church or churches.

Lee Edwards, Esq.

Source of Information:

Email received from Lee Edwards titled Church and State May 31, 2000. Mr. Edwards is a practicing attorney in Tennessee

Neither the Supreme Court nor legal scholars should be very dogmatic in asserting the intent of the Framers on any aspect of constitutional law. For one reason, the ratifying conventions are reported in such meagerness as to throw very little light on the intentions of these persons who were primarily responsible for the adoption of the provisions. A long study into the intention of the persons responsible for the First Amendment should encourage caution and humility in asserting what they meant in anything other than the broadest perspectives.(13) Again, after monumental research into the intent of those responsible for the Fourteenth Amendment, as requested by the Supreme Court, the court could but observe: "Although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive . . . ."(14) So, indeed, will be most attempts to psychoanalyze "the Framers." The Constitution will always operate on many matters on which the Founding Fathers could have had no intent.

(13). Antieau, Downey and Roberts, Freedom from Federal Establishment (Chicago, 1965).

(14) Brown v Board of Education United States (1925) 276 US 394, (1954) 347 US 483, 98 L Ed 873, 878, 74 S Ct 686, 38 AIR2d 1180, SUPP op 349 US 294, 99 L Ed 1083, 75 S Ct 753.

Source of Information:

Modern Constitutional Law, The States and the Federal Government, Volume II, by Chester J. Antieau, Lawyers Cooperative Publishing, Rochester, New York (1969) pp 716.

When the U.S. Constitution was ratified, only the states were empowered to deal with religion. However, in 1868, following the Civil War, the Constitution was amended so as to make the First Amendment, and in fact the first eight amendments, applicable to the various states. The Fourteenth Amendment contains the following statement: "No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, nor shall any state deprive any person of life, liberty or property without due process of law...."

During the congressional discussion of the proposed Fourteenth Amendment, the amendment's floor manager, Senator J. M. Howard (R-Mich.), stated in explaining it, that "to these privileges and immunities . . . should be added the personal rights guaranteed and secured by the first eight amendments to the Constitution." He also said: "The great object of the first section of the amendment is, therefore, to restrain the power of the states and compel them at all times to respect these fundamental guarantees."(18)

In similar fashion, the House of Representatives understood that the purpose of the Fourteenth Amendment was to make the Bill of Rights applicable to the states. Rep, John Bingham (R-Ohio), who was called by Justice Hugo Black "the Madison of the Fourteenth Amendment," stated that the amendment was intended to overturn Barron v. Baltimore (1833), in which the Supreme Court had held that the Bill of Rights was not applicable to the states.(19)

FOOTNOTES:

(18) Congressional Globe, 39th Congress, 1st Session. pp 2765

(19) Ibid., pp 1088-90. See also Congressional Globe, 42nd Congress, 1st Session, Appendix, p. 150, where Bingham restated his intention in drafting the 14th Amendment.

Source of Information:

Religious Liberty and the Secular State, The Constitutional Context, By John M. Swomley, Prometheus Books, Buffalo N Y (1987) pp 61, 72.)

Pro and Con Articles

[I am sure this is not all the articles that might be out there, but I suspect that this list gives a good view of both sides of the issue.]

• The Congressional Globe, op. cit., 30th Cong., p. 2765, italics supplied.
• B. Kendrick, The Journal of the Joint Committee of Fifteen on Reconstruction 46 (1914). Hereafter cited Journal of the Joint Committee.
• Journal of the Joint Committee at 51.
  Id. at 50.
  Id. at 53.
  Id. at 52-53.
  Id. at 56-57.
  Id. at 57.
  Id. at 58.
• Journal of the Joint Committee at 61.
• Journal of the Joint Committee at 83. For a study of voting patterns in the committee.
• Journal of the Joint Committee at 83.
  Id. at 295-303. Owen was the most prominent advocate of civil rights for blacks and women at the Indiana constitutional convention of 1850. Supporting the right of "carrying of weapons," he added: "For if it were declared by Constitutional provision that the people should have the right to bear arms, no law of the Legislature could take away that right." Report of the Debates and Proceedings of the Convention of the Revision of the Constitution of the State of Indiana 1385 (1850). In a U.S. Senate-commissioned report, Owen had written: "The most prized of personal rights is the right of self-defense." R. Owen, The Wrong of Slavery 111-12 (1864).
• Journal of the Joint Committee at 85.
  Id. at 87.
  Id. at 88.
  Id. at 106.
  Id. at 106, 110.
  Id. at 114-15.
• Journal of the Joint Committee, pt. 2, at 271-72.
  Id. at 272.

• ---

• Journal of the Joint Committee on Reconstruction, 39th Cong., 1st Sess. (1866), reprinted as Sen.Doc. No. 711, 63d Cong., 3d Sess. (1915) 6.
• Journal, 9.
• On January 24, 1866, the subcommittee reported back a combination of these two proposals which was not accepted by the full Committee. Journal, 13, 14.
• Journal, 14.
• Journal, 17.
• Journal 28.
• Journal 30.
• Journal 44.
• Journal of the Joint Committee on Reconstruction (1914) 217.
• Journal of the Joint Committee on Reconstruction (1914) 265.
• Report of the Joint Committee on Reconstruction, H.R.Rep.No.30, 39th Cong., 1st Sess. (1866)

• ---

• The Congressional Globe, 39th Cong., Ist Sess, (Washington, I).C.: Blair and Rives, 150-5; 157-60
• The Congressional Globe, 39th Cong., 1st Sess., 320 (Jan. 19, 1866), at 331.
• The Congressional Globe, 39th Cong., 1st Sess. 566 (Feb. 1, 1866).
  Id. at 573.
  Id. at 574-75.
  Id. at 585.
  Id. at 586.
  Id. at 595 (Feb. 2, 1866).
  Id., App., at 69 (Feb. 3, 1866).
• The Congressional Globe, 39th Cong., 1st Sess. 806, 813 (Feb. 13, 1866).
• The Congressional Globe, 39th Cong., 1st Sess. 914 (Feb. 19, 1866).
  Id. at 914-15.
  Id. at 478 (Jan. 29, 1866).
• The Congressional Globe 1033-34 (Feb. 26, 1866).
  Id. at 1064 (Feb. 27, 1866).
  Id. at 1088 (Feb. 28, 1866). And see further comments of Bingham at 1089 ("the existing Amendments") and 1094 ("the law in its highest sense").
  Id. at 1088.-90
  Id. at 1072 (Feb. 28, 1866).
  Id. at 1077.
  Id. at 1117 (Mar. 1, 1866).
  Id. at 1118.
• The Congressional Globe, 39th Cong., 1st Sess. 1118-19 (Mar. 1, 1866).
  Id. at 1121.
  Id. at 1122.
  Id. at 1168 (Mar. 3, 1866).
  Id. at 1182 (Mar. 5, 1866). Pomeroy made several more interesting comments. For example, he referred to "the rights of an individual under the common law when his life is attacked. If I am assaulted by a highwayman, by a man armed and determined, my first duty is to resist him, and if necessary, use my arms also." Id. at 1183.
• The Congressional Globe, 39th Cong., 1st Sess. 1238 (Mar. 7, 1866).
  Id. at 3412 (June 26, 1866).
  Id. at 1263 (Mar. 8, 1866).
  Id. at 1266 (Mar. 8, 1866).
• The Congressional Globe, 39th Cong., 1st Sess. 1270 (Mar. 8, 1866).
  Id., App., at 157 (Mar. 8, 1866).
  Id. at 1291 (Mar. 9, 1866).
• The Congressional Globe, 39th Cong., 1st Sess. 1291 (Mar. 9, 1866).
  Id. at 1292.
• The Congressional Globe, 39th Cong., 1st Sess., 1621 (Mar. 24, 1866).
  Id. at 1622.
  Id. at 1629.
  Id. at 606 (Feb. 2, 1866) (Senate); 1367 (Mar. 13, 1866) (House).
  Id. at 1679 (Mar. 27, 1866). . at 1757 (Apr. 4, 1866).
  Id. at 1809 (Apr. 6, 1866).
• The Congressional Globe, 39th Cong., 1st Sess. 1833 (Apr. 7, 1866). See also id. (remarks of Representative Lawrence) (arguing that one cannot enjoy the rights to life, liberty, and property without "the benefit of laws for the security of person and property.")
  Id. at 1834.
  Id. at 1838.
  Id. at 1861 (Apr. 9, 1866).
  Id. At 1866
• The Congressional Globe, 39th Cong., 1st Sess. 2286 (Apr. 30, 1866).
• The Congressional Globe, 39th Cong., 1st Sess. 2459 (May 8, 1866) at 2465 (May 8, 1866).
  Id. at 2542.
  Id. at 2542-43.
• The Congressional Globe, 39th Cong., 1st Sess. 2545 (May 10, 1866).
• The Congressional Globe, 39th Cong., 1st Sess. 2743 (May 22, 1866).
  Id. at 3412 (June 26, 1866).
• The Congressional Globe, 39th Cong., 1st Sess. 2765 (May 23, 1866).
  Id. at 2766.
• The Congressional Globe, 39th Cong., 1st Sess. 2766 (May 23, 1866).
• The Congressional Globe, 39th Cong., 1st Sess. 2773 (May 23, 1866).
  Id. at 3412 (June 26, 1866).
  Id. at 2773 (May 23, 1866).
  Id. at 2774.
  Id. at 2775.
  Id. at 2878.
• The Congressional Globe, 39th Cong., 1st Sess. 2890 (May 30, 1866).
  Id. at 2897.
  Id. at 2961 (June 5, 1866).
  Id. at 3032 (June 8, 1866).
• The Congressional Globe, 39th Cong., 1st Sess. 3041 (June 8, 1866).
• The Congressional Globe, 39th Cong., 1st Sess. 40 (Dec. 13, 1865).
  Id. at 3042 (June 8, 1866).
  Id. at 3149 (June 13, 1866).

• ---

• The Congressional Globe, 42nd Cong.. 1st Ses., 1871. Appendix, p. 150). In 1871, during a debate on the now ratified amendment Bingham observed that in 1865-66 he had closely "re-examined" Marshall's decision in Barron, wherein the chief Justice had stated that "had the framers of these Amendments (One through Eight intended them to be limitations on the power of state governments. they would have imitated the framers of the Original Constitution and have expressed their intention." Bingham then significantly added, "acting upon this suggestion I did imitate the framers of the Original Constitution" where Bingham restated his intention in drafting the 14th Amendment.
• The Congressional Globe, 42d Cong., 1st Sess., at App. 231.

• ---

• Ex. Doc. No. 118, House of Representatives, 39th Cong., 1st Sess. 7 (1866).
  Id. at 20.
• Ex. Doc. No. 43, U.S. Senate, 39th Cong., 1st Sess., at 8 (1866).
• Sen. Exec. Doc. No. 2, 39th Cong., 1st Sess. (1865) 23, 24, 26, 36.
• "The Freedmen's Bureau Bill," id. at 2, col. 1.
• Report of Commissioner of Freedman's Bureau, Exec. Doc No. 70, 39th Cong., 1st Sess. (1866) 41, 47, 48, 233, 236, 265, 376.
• Scott v. Sandford, 60 U.S. 393, 416-17 (1857). Johnson's oral argument in Dred Scott has not been preserved. See 3 Landmark Briefs And Arguments of The Supreme Court of The United States (1978).
• 32 U.S. (7 Pet.) 243, 250-51.

• ---

• 14 Stat. 27.
• Act of July 16, 1866, 14 Statutes at Large 173, 176.

• ---

  -
• "The Civil Rights Bill in the Senate," New York Evening Post, Apr. 7, 1866, at 2, col. 1. The page facing the editorial supporting enforcement of First and Second Amendment rights against the states included a prominent advertisement for Remington rifles, muskets, "pocket and belt revolvers," and other arms, with the admonition: "In these days of housebreaking and robbery every house, store, bank and office should have one of Remington's revolvers." Id. at 3, col. 10. The New York police were seen as being "employed in the service of the wealthy and prosperous corporations" while crime was rampant. Id.,
• Apr. 16, 1866, at 2, col. 2,
• May 10, 1866, at 2, col. 4.
• New York Evening Post, May 11, 1866, at 2, col. 1.
  Id., Apr. 7, 1866, at 2, col. 1.
• New York Times, May 24, 1866, at 1, col. 6.
• New York Herald, May 24, 1866, at 1, col 3.
• National Intelligencer, May 24, 1866, at 3, col. 2.
• Philadelphia Inquirer, May 24, 1866, at 8, col. 2.
• New York Times, May 25, 1866, at 2, col. 4.
• Chicago Tribune, May 29, 1866, at 2, col. 3.
• Baltimore Gazette, May 24, 1866, at 4, col. 2.
• Boston Daily Advertiser, May 24, 1866, at 1, col. 6;
• Boston Daily Journal, May 24, 1866, at 4, col. 4;
• Springfield Daily Republican, May 24, 1866, at 3, col. 1. The Southern Democratic newspapers generally did not publish any speeches by Republicans, but their reactions to the Howard Amendment are insightful. The amendment's supporters, complained the Daily Richmond Examiner, "are first to make citizens and voters of the negroes." Yet the Examiner praised Senator Howard for objecting to the clause that disenfranchised ex-Confederates. The Southern newspapers never claimed that the amendment was unclear, but they objected to its breadth in guaranteeing to blacks the rights guaranteed in the first eight amendments as well as the right to vote.
• Daily Richmond Examiner, May 25, 1866, at 2, col. 3; id.
• May 26, 1866, at 1, col. 6; Charleston Daily Courier,
• May 28, 1866, at 1, col. 2, and at 4, col. 2; id.,
• May 29, 1866, at 1, cols. 1-2 (comment on Howard's speech).
• New York Evening Post, May 30, 1866, at 2, Col. 3.

• ---

• ALSO FROM THE APPENDIX AND FOOTNOTES FROM
• ADAMSON V. PEOPLE OF STATE OF CALIFORNIA , 332 U.S. 46 (1947) http://laws.findlaw.com/us/332/46.html
• The Congressional Globe, 39th Cong., 1st Sess. (1865) 6, 30.
• On January 24, 1866, the subcommittee reported back a combination of these two proposals which was not accepted by the full Committee. Journal, 13, 14.
• Journal, 14.
• Journal, 17,
• The Congressional Globe, supra, 813.
• The Congressional Globe, supra, 1033, 1034.
• The Congressional Globe, supra, 1054, 1057, 1063-1065, 1083, 1085-1087. See also id. at 1082. Id. at 1059, 1066, 1088.
  Id. at 1089-1091.
• The Congressional Globe, supra, at 1064.
• The Congressional Globe, supra, 1064, 1065.
• April 2, 1866. The Congressional Globe, supra, 1095.
• February 19, 1866,
• The Congressional Globe, supra, 915.
• The Congressional Globe, supra, 1266, 1267.
• The Congressional Globe, supra, 1154, 1155, 1263.
• The Congressional Globe, supra, 1291, 1292.
• The Congressional Globe, supra at 1294.
• The Congressional Globe, supra, 1809, 1861.
• The Congressional Globe, 2459.2
• The Congressional Globe, supra, 2764.
• The Congressional Globe, supra, 2542, 2543.
• The Congressional Globe, 2511, 2896.
• The Congressional Globe, 2461, 2502, 2506, 2513, 2961, 2513.
• The Congressional Globe, 2459, 2462, 2465, 2467, 2498, 2502.
• The Congressional Globe, supra, 2500.
• The Congressional Globe, supra, 2530, 2538.
• The Congressional Globe, supra 2869
• The Congressional Globe, supra, 2896.
• Report of the Joint Committee on Reconstruction, H.R.Rep.No.30, 39th Cong., 1st Sess. (1866)
• Sen.Rep.No. 112, 39th Cong., 1st Sess. (1866)
• The Congressional Globe, supra, 3038, 3051.
• Report, Part III, p. 25.3
• Flack, supra at 142
• The Congressional Globe, 42d Cong., 1st Sess. (App. 1871) 150.
• The Congressional Globe, supra, at 152, 153.
• The Congressional Globe, 42d Cong., 1st Sess. Part I (1871) 475, 476.

• ---

Congressional Globe. 39th Cong., 1st Sess, (Washington, I).C.: Blair and Rives, 1866.

The Globe, 42nd Cong. 1st Ses., 1871. Appendix, p. 150).

Court Cases

• Adamson v. People of State of California, 332 U. S. 46 (1947.)

Journal Articles

• The New "Liberty" under the 14th Amendment, Charles Warren, Harvard Law Review, (1926)
• Does the 14th Amendment Incorporate the Bill of Rights, The Original Understanding. Charles Fairman, 2 Stanford Law Review, 5 (1949)
• Does the 14th Amendment Incorporate the Bill of Rights, Stanley Morrison, 2 Stanford Law Review, 140 (1949)
• Equal Protection of the Law, J P Frank & R F Munto. 50 Columbia Law Review, 141, 150 (1950)
• The Early Antislavery Backgrounds of the Fourteenth Amendment, H.J. Graham. Wisconsin Law Review 479 (1950)
• Our "Declaratory" Fourteenth Amendment, H.J. Graham 7 Stanford Law Review 3 (1954)
• Charles Fairman, Legislative History and the Constitutional Limitations on State Authority, William Crosskey, University of Chicago Law Review, (1954)
• Religious Disestablishment & the 14th Amendment, Joseph Snee, University of Washington Law Quarterly, (1954)
• "John Marshall Harlan: the Justice and the Man," Henry J. Abraham, 46 Kentucky Law Journal 448 (Spring 1958), esp. pp. 469-70.
• The American Constitution, C. Pritchett, 376-82 (1959);
• "Selective Incorporation in the Fourteenth Amendment," Louis Henkin, 73 Yale Law Journal 74 (1963);
• "Constitutional Law-Was It Intended That the Fourteenth Amendment Incorporates the Bill of Rights?" Frank H. Walker Jr., 42 North Carolina Law Review, 925 (1964):
• Memorandum on Incorporation of the Bill of Rights into the Due process Clause of the Fourteenth Amendment, 78 Harvard Law Review 746 1965).
• The Fourteenth Amendment, the "Right" to Vote, and the Understanding of the Thirty-Ninth Congress, Van Alstyne, 1965 S. Ct. Rev. 33;
• The Bill of Rights, I. Brant, 302-59 (1967);
• Incorporation of the Bill of Rights: The Crosskey-Fairman Debates Revisited, Avins, 6 Harvard Juris Legis. 1 (1968);
• Searching for the Intent of the Framers of the Fourteenth Amendment, Kaczorowski, 5 Connecticut Law Review. 368 (1972);
• "The Bill of Rights as a Limitation on State Authority: A Reply to Professor Berger." Michael Kent Curtis, 16 Wake Forest Law Review 1 (1980);
• Our Perfect Constitution, H. Monagham. 56 New York U Law Review 375 n 130 (1981)
• Berger, Incorporation of the Bill of Rights in the Fourteenth Amendment: A Nine Lived Cat, 42 Ohio State Law Journal. 435 (1981 another source lists it as 1982)
• "Further Adventures of the Nine lived Cat: A Response to Mr. Berger on Incorporation of the Bill of Rights," Michael Kent Curtis, 43 Ohio State Law Journal 89 (1982);
• The Fourteenth Amendment and the Bill of Rights, Michael Kent Curtis, 14 Connecticut Law Review. 237 (1982);
• "Incorporation of the Bill of Rights: A Reply to Michael Curtis"; 44 Ohio State Law Journal (1983);
• "Still Further Adventures of the Nine Lived Cat: A Rebuttal to Raoul Berger's Reply on Application of the Bill of Rights to the States," Michael Kent Curtis, 62 North Carolina Law Review 3 (1984).
• The Ideological Origins of the Fourteenth Amendment, D A Farber, J E Muench, 1 Constitutional Commentary 235-253 (1984)
• Revolutionary Constitutionalism in the Era of the Civil War and Reconstruction, R J Kaczorowski, 61 New York U Review 863, 888 (1986)
• The Original Understanding of Original Intent? C. A. Lofgren. 5 Constitutional Commentary, 77, 84 (1988)
• Fourteenth Amendment Concepts in the Antebellum Era. E. M. Maltz 32 The American Journal of Legal History, 305, 335. (1988)
• The Bill of Rights and the Fourteenth Amendment, 101 The Yale Law Journal 1193 (1992)
• "The Blaine Amendment Reconsidered." Steven K. Green. The American Journal of Legal History 36. (January 1992: 38-69.)
• Congressional Misunderstandings and the Ratifiers' Understanding: The Case of the Fourteenth Amendment. Lambert Gingras. The American Journal of Legal History Volume XL, 41 (Jan 1996)

Books

• Blackstone, Commentaries 140-41 (St. Geo. Tucker ed. 1803).
  Id. at 143-44.
• H. Flack, The Adoption of The Fourteenth Amendment 80 (1908).
• Kendrick, Journal of the Joint Committee on Reconstruction (1914)
• Journal of the Joint Committee on Reconstruction, 39th Cong., 1st Sess. (1866), reprinted as Sen. Doc. No. 711, 63d Cong., 3d Sess. (1915)
• Aristotle, Athenian Constitution 43-47 (transl. H. Rackman, 1935).
• Aristotle, The Politics 68, 71, 79, 136, 142, 218 (transl. T. A. Sinclair, 1962);
• I. Brant, The Bill of Rights 337 (1965).
• E. Maltz, Civil Rights, The Constitution, And Congress, 1863-1869, at 82-92 (1990).
• The Anti-slavery Origins of the Fourteenth Amendment Jacobus Ten Brock (Berkeley: University of California Press, 1951).
• American Constitutional Development, C. Swisher, 329-34 (1954);
• The Original Understanding and the Segregation Decision, In his Polities and the Warren Court. Alexander M. Bickel (New York: Harper & Row, 1965), pp. 221-61. Bickel's conclusion is that the authors of the Fourteenth Amendment ultimately chose language which would be capable of growth. It follows that "the record of history properly understood, left the way open to, in fact invited, a decision based on the moral and material state of the Union in 1954, not 1877" (p. 261)
• The American Constitution, C. Pritchett, 376-82 (1959)
• The Adoption of the Fourteenth Amendment. H. Flack (1908 — Reprinted 1965)
• "The Nationalization of the Bill of Rights." Arthur H. North, S.J. which is the third chapter of his book The Supreme Court: Judicial Process and Judicial Politics (New York: Appleton-Century-Crofts, 1966).
• The Bill of Rights, I. Brant, 302-59 (1967)
• Everyman's Constitution, H.J. Graham 169 (1968)
• The American Constitution: Its Origin and Development, 4th ed. Alfred H.. Kelly and Winfred A. Harrison, (New York: Norton, 1970), p. 463.
• Judgments: Essay on American Constitutional History, 77, L Levy. (1972)
• A Covenant with Death, The Constitution, Law, and Equality in the Civil War Era,51. P. S. Paludan (1975)
• Government by Judiciary: The Transformation of the Fourteenth Amendment, R. Berger (1977)
• The Sources of Antislavery Constitutionalism in America, W. M. Wiecek. 254-55 (1977)
• Democracy and Distrust: A Study of Judicial Review, (Cambridge, Mass.: Harvard University Press, 1980), p. 24.
• No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights, Michael Curtis. (Durham, N.C.: Duke University Press, 1986)
• Death Penalties: The Supreme Court's Obstacle Course, R. Berger. (Cambridge, Mass.: Harvard University Press, (1982), especially Chapter 2, "Incorporation of the Bill of Rights."
• The Birth of the Bill of Rights 1776 - 1791, By Robert Allen Rutland. 1983 revised edition
• Processes of Constitutional Decisionmaking Cases and Materials, Second Edition, Paul Brest, Sanford Levinson. Law School Casebook Series, Little, Brown and Company, (1983) pp. 195, 209-211
• Equality Under the Constitution: Reclaiming the Fourteenth Amendment, 99 J A Baer (1983)
• The Ratification of the Fourteenth Amendment, J B James (1984)
• Religious Liberty and the Secular State, The Constitutional Context, By John M. Swomley, Prometheus Books, Buffalo N Y (1987) pp 61, 72.)
• The Fourteenth Amendment: From Political Principle to Judicial Doctrine 117. W E Nelson (1988)
• Visions of Liberty, The Bill of Rights for all Americans, Ira Galsser (1991)
• Black's Law Dictionary, Abridged Sixth Edition, Centennial Edition (1891-1991) West Publishing, St. Paul, Minn. (1991) pp 832-33
• The Bill of Rights & the Politics of Interpretation, by Robert S Peck (1992)
• The Evolving Constitution, How the Supreme Court Has Ruled on Issues from Abortion to Zoning. By Jethro K. Lieberman, Random House (1992) pp 260, 670)
• Freedom & The Court, Sixth edition, Civil Rights & Liberties in the United States. Henry J. Abraham, Barbara A. Perry. Oxford University Press, (1994) pp 9-12, 32-42
• The Supreme Court at Work, Second edition, Joan Biskupic, Elder Witt, Congressional Quarterly, (1997) pp 23-31
• Government by Judiciary: The Transformation of the Fourteenth Amendment, Raoul Berger , Forrest McDonald, Liberty Fund, Incorporated 05/01/1997
• The Fourteenth Amendment and the Bill of Rights by Raoul Berger, Univ of Oklahoma Pr, (October 1999)
• Keeping the Faith, A Cultural History Of The U.S. Supreme Court, by John E. Semonche. Rowman & Littlefield Publishers, Inc. Lanham, MD. (1998 Paperback 2000) pp. 139 -141
• Any of the major Constitutional Law books used as textbooks in various law schools.
• Any of the major Constitutional law books that are published on a regular basis.

Books --Publication Dates Unavailable

• Reconstruction: America's Unfinished Revolution, 1863-1877, Eric Foner
• Reconstruction and Reform, Joy Hakin,
• The Bill of Rights in a Modern State, Stone, Epstein and Sunstein
• The Supreme Court and the Second Bill of Rights, the 14th Amendment and the Nationalization of Civil Liberties, Richard C. Cortner [may be "Cortiner"]
• The Bill of Rights and the States: The Colonial and Revolutionary Origins of American Liberties. Patrick T. Conley and John P. Kaminski,
• The Framers & Fundamental Rights, by Licht

SOME URLS

• Intent of the Fourteenth Amendment was to Protect All Rights, Jon Roland
• 14TH Amendment
• Lecture 3 [14th Amendment]
• For more links, do a Google search for the words: 14th Amendment, incorporation

The following list shows when each provision in the Bill of Rights was incorporated in the 14th Amendment:

• (5) 1897 -- Right to Just Compensation -- Chicago, Burlington & Qunicy Railway Company v Chicago, 166 U.S. 226 (1897)
• (1) 1925 -- Freedom of Speech -- Gitlow v. New York, 268 U.S. 652 (19250 [dictum]
  1927 -- Fiske v Kansas, 274 U.S. 380 (1927) [holding]
• (1) 1931 -- Freedom of the Press -- Near v Minnesota, 283 U.S. 679 (1931)
• (6) 1932 -- Assistance of Counsel in capital case -- [my info might be wrong on the case in this one because it lists the case as 1963, ] Peterson v City of Greenville, 373 U.S. 244 (1963)
• (1) 1937 -- Freedom of Assembly -- DeJonge v Oregon, 299 U.S. (1937)
• (1) 1940 -- Free Exercise of Religion -- Cantwell v Connecticut, 310 U.S. 296 (1940)
• (1) 1947 -- Ban on Religious Establishment -- Everson v Board Of Education, 330 U.S. 1 (1947)
• (4) 1948 -- Right to public trial -- Oliver, In re, 333 U.S. 257 (1948)
• (4) 1949 -- Right against unreasonable Search and Seizure-- Wolf v Colorado, 338 U.S. 25 (1949)
• (1) 1958 -- Freedom of Association -- NAACP v Alabama, 357 U.S. 449 (1958)

If anyone wants the case name for the following incorporations, please email us.

• (4) 1961 -- Exclusionary Rule
• (8) 1962 -- Ban on Cruel and Unusual Punishment
• (6) 1963 -- Assistance of counsel in all felony cases
• (5) 1964 -- Right against Self-incrimination
• (6) 1965 -- Right to confront adverse witnesses
• (6) 1966 -- Right to impartial trial
• (6) 1967 -- Right to Compulsory Process to obtain witnesses
• (6) 1967 -- Right to Speedy Trial
• (6) 1968 -- Right to Jury in nonpetty criminal cases
• (5) 1969 -- Right against Double Jeopardy
• (6) 1972 -- Right to counsel imprisonable misdemeanor cases
• (6) 1972 -- Right to notice of accusation
• (6) 1979 -- Right to a unanimous verdict if only six jurors

Source of Information:

The Evolving Constitution, How the Supreme Court Has Ruled on Issues from Abortion to Zoning. By Jethro K. Lieberman, Random House (1992) pp. 258, 260.