Incorporating the Bill of Rights against the States

Now we move on to the question of what rights are constitutionally protected. Since the Supreme Court held in 1833 that the Bill of Rights did not apply to the states, and the federal government adopted few restrictions on individual behavior before the Civil War, there was minimal litigation interpreting constitutionally-protected rights. After learning that southern states severely restricted the liberties of freed blacks, Congress attempted to bind the states to comply with the Bill of Rights when it passed the 14th Amendment in 1866. It was ratified by the necessary 3/4 of states two years later. Chapter one in this unit explains how the Congressional effort to create protection against state infringement of rights was frustrated by the Supreme Court in the 1870s.

Chapter two discusses how the Court came to use the Fourteenth Amendment Due Process to “incorporate” various rights against the states. meaning the states were required to respect these rights. The Court began with the right it had refused to apply to the states in Barron v. Baltimore–the right to just compensation for a government taking–but moved rather slowly until the 1920s, when it began incorporating both enumerated and unenumerated rights. The Court then moved in cycles, incorporating many rights in the 1930s, 1940s, and 1960s, but very few at other times. In the past fifteen years, it has incorporated three more rights, leaving only three that states are not required to protect, which are discussed at the end of the chapter.

Chapter three addresses the three constitutional tests that apply when challenges are made to laws, regulations, and government practices. The most lenient is the rational relationship test; the most stringent is appropriately called strict scrutiny, and the test in the middle is intermediate scrutiny. This chapter explains each of these tests and the situations to which each apply.