DUE PROCESS: RIGHTS INCORPORATED VS. RIGHTS ENUMERATED - KNOW THE DIFFERENCE
In the original thirteen colonies, due process was established through a combination of English common law, colonial charters, and local legislative bodies. The British monarchy issued colonial charters that outlined governance structures, including legal protections for colonists. Additionally, colonial legislatures, such as the Virginia House of Burgesses and the Massachusetts General Court, played a role in shaping legal procedures and ensuring fair trials. After independence, due process became a foundational principle in American law, evolving through state constitutions, judicial decisions, and, most importantly, the U.S. Constitution. The Fifth Amendment was written by James Madison, who played a crucial role in drafting the Bill of Rights. It was ratified in 1791 as part of the first ten amendments to the U.S. Constitution. Later, the Supreme Court in Barron v. City of Baltimore, 32 U.S. 243 (1833) ruled that the Fifth Amendment did not apply to the states.
Following ratification of the Fourteenth Amendment, the Supreme Court began making individual freedoms enumerated in the Bill of Rights applicable to the states via the doctrine of incorporation. The constitutional principle of incorporation, established through Supreme Court rulings, ensures that many protections in the Bill of Rights apply to state governments as well. This process is known as selective incorporation, meaning that the Court has applied individual rights from the Bill of Rights to the states gradually, rather than all at once. This process has fundamentally shaped American constitutional law and is considered precedent, not mere commentary.
The doctrine of incorporation was primarily used to apply the Bill of Rights to state governments through the Fourteenth Amendment’s Due Process Clause. The Thirteenth Amendment, which abolished slavery and involuntary servitude, operates differently—it directly restricts both state and private actions, meaning it does not require incorporation to be enforced at the state level.
Senator Lyman Trumbull, who introduced the Civil Rights Act of 1866, emphasized that the law was meant ( i.e legislative intent ) to give practical effect to the principles of freedom established by the Thirteenth Amendment. He argued that abstract declarations of rights were meaningless unless the people emancipated had a way to enforce and benefit from them. Trumbull saw the 1866 Civil Rights Act as a way to protect freedmen from the Black Codes, which severely restricted rights - making due process a feature established by the 13th Amendment and a form of protection for Freedmen from the badges, incidents and vestiges of slavery…
One key figure in this development was John Bingham, the architect of the Fourteenth Amendment. He argued that the Civil Rights Act of 1866 protected the natural and equal rights of Freedmen to due process. At the time, Congress lacked the constitutional authority to enforce the Fifth Amendment’s Due Process Clause, as a protection measure against the states in matters involving Freedmen, because the clause applied only to the federal government. This meant that states were not bound by its protections, allowing them to exercise inchoate rights that denied equal protection to freedmen, abolished by the Thirteenth Amendment. This limitation led to the drafting of the Fourteenth Amendment, which explicitly extended enumerated due process protections to state actions involving Freedmen, and granted Congress the power to enforce them. The distinction is historically significant. Due process protections for Freedmen were enumerated by Congress through legislation like the Civil Rights Act of 1866, which was passed under the authority of Section II of the Thirteenth Amendment to secure legal rights for formerly enslaved individuals. This act granted citizenship and ensured that American Freedmen had the same legal protections as white citizens.
Due Process was enumerated by congress for the Freedmen - and due process was incorporated by the courts for all others. Judicial interpretation can be reversed due to changes in legal reasoning, societal values, or shifts in judicial philosophy - not which is enumerated under the 13th Amendment.
Footnotes
- The doctrine of incorporation is not dicta—it is a binding constitutional principle established through Supreme Court rulings.
- Key Cases That Incorporated Rights
- The doctrine of incorporation did not immediately extend the Bill of Rights to American Freedmen because incorporation was a gradual process (not Congressional legislation) that developed through Supreme Court rulings long after Reconstruction.
- When interpreting laws, courts aim to ascertain and effectuate the intention of the legislature. This means that judges and legal scholars look at the text of the statute, its historical context, and any legislative history to determine what lawmakers intended when passing the law
In the original thirteen colonies, due process was established through a combination of English common law, colonial charters, and local legislative bodies. The British monarchy issued colonial charters that outlined governance structures, including legal protections for colonists. Additionally, colonial legislatures, such as the Virginia House of Burgesses and the Massachusetts General Court, played a role in shaping legal procedures and ensuring fair trials. After independence, due process became a foundational principle in American law, evolving through state constitutions, judicial decisions, and, most importantly, the U.S. Constitution. The Fifth Amendment was written by James Madison, who played a crucial role in drafting the Bill of Rights. It was ratified in 1791 as part of the first ten amendments to the U.S. Constitution. Later, the Supreme Court in Barron v. City of Baltimore, 32 U.S. 243 (1833) ruled that the Fifth Amendment did not apply to the states.
Following ratification of the Fourteenth Amendment, the Supreme Court began making individual freedoms enumerated in the Bill of Rights applicable to the states via the doctrine of incorporation. The constitutional principle of incorporation, established through Supreme Court rulings, ensures that many protections in the Bill of Rights apply to state governments as well. This process is known as selective incorporation, meaning that the Court has applied individual rights from the Bill of Rights to the states gradually, rather than all at once. This process has fundamentally shaped American constitutional law and is considered precedent, not mere commentary.
The doctrine of incorporation was primarily used to apply the Bill of Rights to state governments through the Fourteenth Amendment’s Due Process Clause. The Thirteenth Amendment, which abolished slavery and involuntary servitude, operates differently—it directly restricts both state and private actions, meaning it does not require incorporation to be enforced at the state level.
Senator Lyman Trumbull, who introduced the Civil Rights Act of 1866, emphasized that the law was meant ( i.e legislative intent ) to give practical effect to the principles of freedom established by the Thirteenth Amendment. He argued that abstract declarations of rights were meaningless unless the people emancipated had a way to enforce and benefit from them. Trumbull saw the 1866 Civil Rights Act as a way to protect freedmen from the Black Codes, which severely restricted rights - making due process a feature established by the 13th Amendment and a form of protection for Freedmen from the badges, incidents and vestiges of slavery…
One key figure in this development was John Bingham, the architect of the Fourteenth Amendment. He argued that the Civil Rights Act of 1866 protected the natural and equal rights of Freedmen to due process. At the time, Congress lacked the constitutional authority to enforce the Fifth Amendment’s Due Process Clause, as a protection measure against the states in matters involving Freedmen, because the clause applied only to the federal government. This meant that states were not bound by its protections, allowing them to exercise inchoate rights that denied equal protection to freedmen, abolished by the Thirteenth Amendment. This limitation led to the drafting of the Fourteenth Amendment, which explicitly extended enumerated due process protections to state actions involving Freedmen, and granted Congress the power to enforce them. The distinction is historically significant. Due process protections for Freedmen were enumerated by Congress through legislation like the Civil Rights Act of 1866, which was passed under the authority of Section II of the Thirteenth Amendment to secure legal rights for formerly enslaved individuals. This act granted citizenship and ensured that American Freedmen had the same legal protections as white citizens.
Due Process was enumerated by congress for the Freedmen - and due process was incorporated by the courts for all others. Judicial interpretation can be reversed due to changes in legal reasoning, societal values, or shifts in judicial philosophy - not which is enumerated under the 13th Amendment.
Footnotes
- The doctrine of incorporation is not dicta—it is a binding constitutional principle established through Supreme Court rulings.
- Key Cases That Incorporated Rights
- Gitlow v. New York (1925) – Incorporated freedom of speech.
- Mapp v. Ohio (1961) – Incorporated protection against unreasonable searches and seizures.
- Gideon v. Wainwright (1963) – Incorporated the right to legal counsel.
- Miranda v. Arizona (1966) – Incorporated Miranda rights (right to remain silent, etc.).
- McDonald v. Chicago (2010) – Incorporated the Second Amendment right to bear arms.
- The doctrine of incorporation did not immediately extend the Bill of Rights to American Freedmen because incorporation was a gradual process (not Congressional legislation) that developed through Supreme Court rulings long after Reconstruction.
- When interpreting laws, courts aim to ascertain and effectuate the intention of the legislature. This means that judges and legal scholars look at the text of the statute, its historical context, and any legislative history to determine what lawmakers intended when passing the law