By the Fifth Amendment the federal government is prohibited from depriving any person of "life, liberty or property without due process of law." The Fourteenth Amendment imposes the same restrictions upon the state government. After the adoption of the Fourteenth Amendment in 1868, a minority of the Supreme Court justices argued that the due process clause of the Fourteenth Amendment should be construed to impose on the states exactly the same limitations that are imposed on the national government by the Bill of Rights. For decades, the Supreme Court refused to interpret the Fourteenth Amendment in this manner. Several conservative justices took up the no incorporation stand. This meant that property rights were given a priority over personal liberties.

However in 1925, in the case of ’Gitlow versus New York’, the Supreme Court made a revolutionary and significant decision. Since then the Fourteenth Amendment has placed the same restraints regarding free speech on states, that the First Amendment places on the national government. Though the Supreme Court did not adopt the doctrine of total incorporation (that means all the amendments in the Bill of Rights could be applied to the states), it is coming closer to this position. Between 1930 and 1964, the Supreme Court had selectively incorporated provision after provision (called selective incorporation) of the Bill of Rights into the requirements of the due process clause of the Fourteenth Amendment. Thus the Supreme Court ruled that certain provisions of the Bill of Rights are to be included in the Fourteenth Amendment as restrictions upon the states. Among them are freedom of speech, press, religion, the right of peaceable assembly, protection against unreasonable searches and seizures and against self-incrimination, the right of one accused of crime to the benefit of counsel and the guaranty against the taking of private property for public use without just compensation. The due process clause assures the individual that no government, either national or state can deprive him of life, liberty or property in a way that the Supreme Court considers unfair.

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Index

12.0 Introduction
12.1 Perspective on Civil
12.2 The First Amendment:Freedom of Religion
12.3 The First Amendment:Freedom of Speech
12.4 The First Amendment:Freedom of Press
12.5 The Rights of Defendants
12.6 Implied Rights

Chapter 13