Last week I wrote briefly about Brown v. Board of Education, the landmark case ruling “separate but equal” has no place in public education as it violates the Equal Protection clause of the Fourteenth Amendment. The Fourteenth Amendment is one of the three “Reconstruction Amendments,” ratified after the Civil War. I am not a historian, and I urge you to read up on the history. Although the text is just a handful of sentences, the effects of this Amendment cannot be overstated. The Bill of Rights, as written, did not originally apply to the states. The First Amendment opens with a command to Congress, not the states. However, the Bill of Rights is now understood to apply to the states. Why?

For much of the 1800s, the Bill of Rights did not apply to the states (and the Court expressly held otherwise in 1833.) After the Civil War, the Reconstruction Amendments directly impacted the states, but the existing Supreme Court precedent stood. The first section of the Fourteenth Amendment states:

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.

This is now the second time that “due process” appears in a Constitutional Amendment, and unlike the Fifth Amendment’s due process, there is no question that the Fourteenth’s version applied to the states. However, we are still many decades from the Bill of Rights applying to the states as we understand it too. Between here and there, the Fourteenth’s due process clause has taken a wild Supreme Court ride, veering into a stretch called the Lochner era (a great time to be capital that I will write about soon, as our current political climate makes such public knowledge necessary and proper.) But I digress. Focus, Law Talkin’ Guy!

In 1925, the Court decided an interesting free speech case, Gitlow v. New York, 268 U.S. 625, which is generally viewed as the first case to expressly state that the rights protected by the Bill of Rights do in fact apply to the states. How? Our friend the Fourteenth Amendment of course! The Gitlow Court on the “liberty” protected in the Fourteenth:

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. Gitlow, at 666.

If that statement sounds important but also a bit vague, it’s not you. This was “dicta,” statements from the Supreme Court that were not necessary to decide a specific case but nonetheless something one or more justice felt was worth writing. It is sort of a law grey area that is still useful for later arguments, and can give some indication as to the Courts views on related legal topics. Over the next decades after Gitlow,  additional Constitutional rights and guarantees were held to apply to the states in some of the most important cases of the modern era, via a doctrine known as “incorporation.”

Today’s post is merely an introduction to the Fourteenth Amendment, a topic to which I could devote an entire blog. Among other takeaways, many of the Constitutional rights we accept as a given were only expressly applied to the states during our parents and grandparents lives. History is not always in the distant past, and all Supreme Court decisions can be overturned. Stay vigilant!