4. Timeline of Key Events Related to Incorporation
1787: The Constitutional Convention in Philadelphia draws up the Constitution. It was ratified in 1788 after heated Federalist/Anti-Federalist debate. James Madison, Alexander Hamilton, and John Jay write a series of pro-ratification editorials, now known as The Federalist Papers. A major source of controversy is the lack of a bill of rights.
1789: George Washington is inaugurated as first President of the United States. First Congress; Bill of Rights proposed; Judiciary Act of 1789 creates federal courts.
1791: Bill of Rights ratified.
1803: Marbury v. Madison (6–0): Chief Justice John Marshall articulates the principle of judicial review. Under this doctrine, the Supreme Court now passes on the constitutionality of acts of Congress and of state legislatures and nullifies unconstitutional legislation.
1820: The Missouri Compromise: Congress admits Missouri as a slave state and Maine as a free state to maintain the balance between slave and free states in the Senate. Congress agrees that in the future, states admitted below 36 degrees 30 minutes latitude may be slave, above will be free.
1831: William Lloyd Garrison begins publication of the abolitionist periodical, the Liberator. The Nat Turner slave revolt in Virginia leads to harsher regulation of slavery in the South. In the years that follow, Southern states search interstate travelers and others for anti-slavery books; abolitionists and critics of slavery caught in the South are whipped (or worse). By 1856, Southern postmasters seize and remove pro-Republican newspapers from the mails. The increasing conflict over slavery ultimately brings on the Civil War.
1833: Barron v. Baltimore (7–0): Guarantees of the Bill of Rights limit only the federal government, not the states.
1850: Compromise of 1850: Congress admits California as a free state but passes a much stricter Fugitive Slave Act.
1854: Kansas-Nebraska Act: Congress repeals the Missouri Compromise, allowing voters in each territory to decide whether to be a slave or free state. A war breaks out in the Kansas territory between the pro and anti-slavery forces.
1857: Dred Scott v. Sandford: The Court rules that Congress lacks the power to outlaw slavery in federal territory and that even free blacks cannot be citizens of the United States and are thus unprotected by the Constitution’s guarantees of individual rights. Hinton Helper publishes the Impending Crisis, an indictment of slavery. Lincoln’s Republican Party uses it as a campaign document. Southern states treat circulation of the book as a crime. Southern officials search out-of-state travelers for “incendiary literature.”
1860: State v. Worth (N.C. 1860): North Carolina Supreme Court affirms the conviction of minister Daniel Worth for circulating an anti-slavery book, the Impending Crisis, which was used as a Republican campaign document. The statute provided for both imprisonment and whipping for convicted offenders. Abraham Lincoln is elected as a Republican President. As a result, South Carolina secedes, followed by most (but not all) of the other slave states.
1865: Lincoln is assassinated five days after Lee’s surrender to Grant at Appomattox. Andrew Johnson becomes President upon Lincoln’s assassination. The 13th Amendment is ratified. The 13th Amendment, by its implied repeal of the Clause by which slaves counted as 3/5ths of a person for purposes of representation in the federal House and the electoral college, meant that the South, having lost the war, might return to political power on the backs of disenfranchised Americans of African descent.
1866: The 14th Amendment is proposed. Section 1 limited the states from abridging certain individual rights. Section 2 dealt with the problems raised by the 13th Amendment and the 3/5ths Clause.
1866-76: Reconstruction. White and Black Republican coalitions rule the post-war South, but are ultimately driven from power by political terrorism. The “Jim Crow” era is later secured by racist statutes.
1868: The 14th Amendment is ratified. Susan B. Anthony and Elizabeth Cady Stanton bitterly oppose the Amendment because § 2 reduces a state’s congressional representation only if it restricts the voting rights of males. Victoria Woodhull addresses the Judiciary Committee of the House of Representatives arguing that women should have the right to vote under the 14th Amendment. The Committee, with several congressmen dissenting, issues a negative report.
1872: The federal Amnesty Act restores full political privileges to Confederate oath-breakers.
1872–76: Attack on and eventual overthrow of Reconstruction in the South.
1873: Slaughter-House Cases (5–4): The Court begins the liquidation of the Privileges or Immunities Clause of the 14th Amendment. Following the decision, the Court holds one after another of the guarantees of the Bill of Rights do not limit the states.
Bradwell v. State: Following the approach of Slaughter-House on the limited scope of the Privileges or Immunities Clause of the 14th Amendment, the Court upholds Illinois’ ban on women practicing law, ruling it is not a privilege of national citizenship. No equal protection claim was made.
1875: Minor v. Happersett (9–0): The Court rules that citizenship does not give women the right to vote under the Privileges or Immunities Clause of the 14th Amendment; therefore, women’s political rights are under the jurisdiction of each individual state. Mrs. Minor’s husband had to sue on her behalf since married women, like children, could not file suit on their own.
1876: United States v. Cruickshank: the Court holds rights in the Bill of Rights do not limit the states and that Congress lacks power under the 14th Amendment to punish private individuals who terrorize citizens because of their political opinions, assembly, or exercise of other liberties in the Bill of Rights. Federal power is limited to state action.
1877: Under the Compromise of 1877, which is regarded as the formal end of Reconstruction, Republicans get the presidency in a contested election. Federal troops in the South largely leave blacks and Republicans to their own devices as they face political terror.
1883: Civil Rights Cases (8–1): Court holds that Congress lacks power under either the 13th or 14th Amendment to pass a statute that prohibits racial discrimination in public accommodations by individuals or corporations. The Court also holds that the 14th Amendment’s protections are limited to “state action.”
1900: Maxwell v. Dow (8–1): The Supreme Court, in an opinion written by Justice Peckham, soon to be the author of Lochner v. New York, rules that the criminal jury trial guarantee of the 6th Amendment does not limit the states. The Court warns that application of Bill of Rights as a limit on the states would threaten state sovereignty.
1925: Gitlow v. New York (7–2): The Court assumes that rights to free speech and free press limit the states. By the 1930s, the Court begins to refer to the absorption of the 1st Amendment into the 14th as a limit on the states under the Due Process Clause of the 14th Amendment.
1937: Palko v. Connecticut (8–1): By this time the Court has required states to obey the free speech and press guarantees and to some degree the right to counsel as aspects of “liberty” under the Due Process Clause of the 14th Amendment. In Palko, this selective incorporation of guarantees of the Bill of Rights into the 14th Amendment is rationalized on the theory that the absorbed rights are implicit in the concept of ordered liberty.
1947: Adamson v. California (5–4): The Court refuses to apply the privilege against self-incrimination to the states. In dissent, Justice Black—joined by three other justices—advocates total incorporation and cites his reading of the historical record.
1953–69:Warren Court: The Court embraces expanded national protection for free speech, the rights of those accused of crimes, and freedom from state-imposed racial discrimination. Most of the still-unincorporated Bill of Rights guarantees are applied to the states. The Court also upholds the Civil Rights Act of 1964, which banned discrimination in public accommodations and employment. It also upholds the Voting Rights Act of 1965, which provided strong and effective remedies against state racial discrimination in voting.
1968: Duncan v. Louisiana (7–2): The Court holds the right to jury trial fundamental to the American scheme of justice and so incorporated into the 14th Amendment’s Due Process Clause as a limit on the states.
1999: Saenz v. Roe (7–2): Court invokes the Privileges or Immunities Clause of the 14th Amendment to strike down California’s refusal to pay new residents a higher rate of welfare than they had received in their previous state. The limit had applied until they had resided in California for one year.
2010: McDonald v. Chicago (5–4): The court holds that an individual right to bear arms is incorporated as a limit on the states. Justice Thomas concurs basing incorporation on the Privileges or Immunities Clause.