13
the domain of the common law.” Twining, supra, at 113.
Fourth, the Court during this era was not hesitant to
hold that a right set out in the Bill of Rights failed to
meet the test for inclusion within the protection of the
Due Process Clause. The Court found that some such
rights qualified. See, e.g., Gitlow v. New York, 268 U. S.
652, 666 (1925) (freedom of speech and press); Near v.
Minnesota ex rel. Olson, 283 U. S. 697 (1931) (same);
Powell, supra (assistance of counsel in capital cases); De
Jonge, supra (freedom of assembly); Cantwell v. Con-
necticut, 310 U. S. 296 (1940) (free exercise of religion).
But others did not. See, e.g., Hurtado, supra (grand jury
indictment requirement); Twining, supra (privilege
against self-incrimination).
Finally, even when a right set out in the Bill of Rights
was held to fall within the conception of due process, the
protection or remedies afforded against state infringement
sometimes differed from the protection or remedies pro-
vided against abridgment by the Federal Government. To
give one example, in Betts the Court held that, although
the Sixth Amendment required the appointment of coun-
sel in all federal criminal cases in which the defendant
was unable to retain an attorney, the Due Process Clause
required appointment of counsel in state criminal proceed-
ings only where ”want of counsel in [the] particular case
. . . result[ed] in a conviction lacking in . . . fundamental
fairness.” 316 U. S., at 473. Similarly, in Wolf v. Colo-
rado, 338 U. S. 25 (1949), the Court held that the ”core of
the Fourth Amendment” was implicit in the concept of
ordered liberty and thus “enforceable against the States
through the Due Process Clause” but that the exclusionary
rule, which applied in federal cases, did not apply to the
States. Id., at 27-28, 33.
2
An alternative theory regarding the relationship be-
14
tween the Bill of Rights and §1 of the Fourteenth Amend-
ment was championed by Justice Black. This theory held
that §1 of the Fourteenth Amendment totally incorporated
all of the provisions of the Bill of Rights. See, e.g.,
Adamson, supra, at 7172 (Black, J., dissenting); Duncan,
supra, at 166 (Black, J., concurring). As Justice Black
noted, the chief congressional proponents of the Four-
teenth Amendment espoused the view that the Amend-
ment made the Bill of Rights applicable to the States and,
in so doing, overruled this Courts decision in Barron.9
Adamson, 332 U. S., at 72 (dissenting opinion).10 None-
———————
9 Senator Jacob Howard, who spoke on behalf of the Joint Committee
on Reconstruction and sponsored the Amendment in the Senate, stated
that the Amendment protected all of “the personal rights guarantied
and secured by the first eight amendments of the Constitution.” Cong.
Globe, 39th Cong., 1st Sess., 2765 (1866) (hereinafter 39th Cong.
Globe). Representative John Bingham, the principal author of the text
of §1, said that the Amendment would “arm the Congress . . . with the
power to enforce the bill of rights as it stands in the Constitution
today.” Id., at 1088; see also id., at 1089-1090; A. Amar, The Bill of
Rights: Creation and Reconstruction 183 (1998) (hereinafter Amar, Bill
of Rights). After ratification of the Amendment, Bingham maintained
the view that the rights guaranteed by §1 of the Fourteenth Amend-
ment “are chiefly defined in the first eight amendments to the Consti-
tution of the United States.” Cong. Globe, 42d Cong., 1st Sess., App. 84
(1871). Finally, Representative Thaddeus Stevens, the political leader
of the House and acting chairman of the Joint Committee on Recon-
struction, stated during the debates on the Amendment that “the
Constitution limits only the action of Congress, and is not a limitation
on the States. This amendment supplies that defect, and allows Con-
gress to correct the unjust legislation of the States.” 39th Cong. Globe
2459; see also M. Curtis, No State Shall Abridge: The Fourteenth
Amendment and the Bill of Rights 112 (1986) (counting at least 30
statements during the debates in Congress interpreting §1 to incorpo-
rate the Bill of Rights); Brief for Constitutional Law Professors as
Amici Curiae 20 (collecting authorities and stating that “[n]ot a single
senator or representative disputed [the incorporationist] understand-
ing” of the Fourteenth Amendment).
10 The municipal respondents and some of their amici dispute the
significance of these statements. They contend that the phrase ”privi-