Faculty voice:

Michael Lawrence: Our Hard-Won Bill of Rights

Sept. 16, 2014

Michael Lawrence is a professor in the Michigan State University College of Law and an expert on constitutional law.His book, "Radicals in Their Own Time: Four Hundred Years of Struggle for Liberty and Equal Justice in America," was published by Cambridge University Press in 2011, and his book, "Model Problems and Outstanding Answers: Constitutional Law" (with Kevin Saunders), was published by Oxford University Press in 2013.

This Wednesday marks Constitution Day, which is observed every Sept. 17 to commemorate the day in 1787 when 39 delegates to the Constitutional Convention signed the Constitution. The holiday, falling as it does early in the fall semester every year, provides a nice opportunity to reflect on different aspects of the Constitution.

Here on campus, a wide variety of such discussions has taken place over the years, including even, “Is Constitution Day Constitutional?” (hint: yes). This year, in keeping with the theme of MSU’s yearlong Project 60/50 community conversation on civil and human rights (commemorating sixty years since the Supreme Court’s 1954 Brown v. Topeka Board of Education decision ending “separate but equal” schools, and fifty years since the signing of the Civil Rights Act of 1964 making unlawful many forms of discrimination), it is interesting to consider the history of how the Constitution has come to provide certain protections that we as Americans now regard as virtual birthrights.

Many of these rights are secured by the roughly 25 separate provisions contained within the Bill of Rights (the first 10 amendments to the Constitution, which became part of the Constitution in 1791 just two years after the ratification of the Constitution’s original Articles). Such familiar protections as freedom of speech and religion (First Amendment), protection against unreasonable search and seizure (Fourth Amendment), right against self-incrimination (Fifth Amendment), and protection against cruel and unusual punishment (Eighth Amendment) are contained within the Bill of Rights.

One thing many people today don’t realize, however, is that most of these protections in the Bill of Rights have only been fully operative against all levels of government within the last 50 years or so.

To illustrate, imagine that I am sitting in my home (in Ohio, for sake of discussion) when the state and local police, without a warrant, barge into my living room and conduct a search for evidence of a crime they suspect I committed. Today, the police without question would be found in violation of the Fourth Amendment’s prohibition against unreasonable search and seizure; and, under the “exclusionary rule,” any evidence they collected during their unconstitutional search would be excluded at trial. By contrast, however, had the same exact scenario occurred in 1960, the state prosecutors could have used the evidence against me at trial.

How can this be? At the heart of the answer is the concept of “incorporation” (the very first topic discussed this semester, in fact, in my Constitutional Law II class). At the time of its 1791 ratification, the Bill of Rights only applied against the newly-created federal government, since the framers did not think it was necessary to apply protections against the states, which they believed would always look out for the people’s best interests.

Some 80 years later and after the Civil War, once it had become clear that the states would not look out for the interests of all, the 14th Amendment was added to prohibit the states from depriving any person of life, liberty or property without due process of law, and from denying to any person the equal protection of the laws.

The Supreme Court held in 1873, however, that the newly-added 14th Amendment did not apply any of the Bill of Rights provisions to the states, so thereafter the Bill of Rights still only applied to the federal government. (So, if it had been FBI agents, instead of state and local officers, who barged into my home in 1960, the search and seizure would have been unconstitutional, and the evidence would have been excluded from trial.)

It was not until the 1920s that the Supreme Court concluded that the right contained in one of the Bill of Rights provisions—the First Amendment’s protection of free speech—was “incorporated” into the concept of “liberty” contained within the due process clause of the 14th Amendment; accordingly, states were forbidden thereafter from abridging a person’s free speech rights.

In the following decades a few more Bill of Rights provisions were selectively incorporated, but it wasn’t until the Warren Court era (1953-1969, and especially in the 1960s), that the majority of the remaining provisions were incorporated to apply to the states. (Today, only four remain unincorporated).

Back again to my hypothetical travails…. In 1960, the U.S. Supreme Court was still operating under a 1949 case, Wolf v. Colorado, which explained, “in a prosecution in a state court for a state crime, the 14th Amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure.” In other words, the exclusionary rule was not incorporated, so as things stood in 1960 I would not have been able to claim Fourth Amendment protection against the use of evidence acquired during the warrantless search by state and local police.

It was not until 1961, in Mapp v. Ohio, that the Supreme Court reversed Wolf and incorporated the exclusionary rule, reasoning, “the exclusionary rule is an essential part of both the Fourth and Fourteenth Amendments.” In so holding, the Court pointed to the injustice that exists when “a federal prosecutor may make no use of evidence illegally seized, but a state's attorney across the street may, although he supposedly is operating under the enforceable prohibitions of the same amendment.”

In conclusion on this Constitution Day, there are numerous other examples of similarly hard-won Bill of Rights protections against state and local governmental infringements that are of relatively recent vintage, having been secured—perhaps surprisingly to many among us—only through a laborious process spanning more than two centuries.