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.
In any event, the opponents of ratification soon made the absence of a bill of rights a major argument,
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"
The Fourteenth Amendment .-Following the ratification of the Fourteenth Amendment, litigants disadvantaged by state laws and policies first resorted unsuccessfully to the privileges or immunities clause of § 1 for judicial protection.
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.
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 ...."
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 ,
Aside from the theoretical and philosophical considerations raised by the question whether the Bill of Rights is incorporated into the Fourteenth Amendment or whether due process subsumes certain fundamental rights that are 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,
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).
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, 299 U.S. at 364, 365; Hague v. CIO, 307 U.S. 496 (1939); Bridges v. California, 314 U.S. 252 (1941).
Search and seizure- Wolf v. Colorado, 338 U.S. 25 (1949); Mapp v. Ohio, 367 U.S. 643 (1961).
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).
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).
Cruel and unusual punishment- Louisiana ex rel. Francis v. Resweber, 329 U. S. 459 (1947); Robinson v. California, 370 U.S. 660 (1962).
Provisions not applied are:
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).
Quartering troops in homes-No cases.
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).
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).