Norman's Blog

After the Fourteenth Amendment to the US Constitution was ratified on July 9, 1868, the Supreme Court ignored John Bingham's intent to make the first eight amendments enforceable upon the states. Chief Justice Morrison Waite wrote in United States v. Cruikshank (1875) 92 US 542 at 552:

The first amendment to the Constitution prohibits Congress from abridging "the right of the people to assemble and to petition the government for a redress of grievances." This, like the other amendments proposed and adopted at the same time, was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National Government alone.... It is now too late to question the correctness of this construction. As was said by the late Chief Justice, in Twitchell v. The Commonwealth, 7 Wall. 325, "the scope and application of these amendments are no longer subjects of discussion here." They left the authority of the States just where they found it, and added nothing to the already existing powers of the United States.

In 1897, Justice John Harlan in Chicago, B & Q R Co v. City of Chicago (1897) 166 US 226 at 238-239 cites a lower court that understood the Fourteenth Amendment correctly. He writes,

In Scott v. Toledo, 36 Fed.Rep. 385, 395-396, the late Mr. Justice Jackson, while Circuit Judge, had occasion to consider this question. After full consideration, that able judge said:

"Whatever may have been the power of the States on this subject prior to the adoption of the Fourteenth Amendment to the Constitution, it seems clear that, since that amendment went into effect, such limitations and restraints have been placed upon their power in dealing with individual rights that the States cannot now lawfully appropriate private property for the public benefit or to public uses without compensation to the owner, and that any attempt so to do, whether done in pursuance of a constitutional provision or legislative enactment, whether done by the legislature itself or under delegated authority by one of the subordinate agencies of the State, and whether done directly, by taking the property of one person and vesting it in another or the public, or indirectly, through the forms of law, by appropriating the property and requiring the owner thereof to compensate himself, or to refund to another the compensation to which he is entitled, would be wanting in that 'due process of law' required by said amendment. The conclusion of the court on this question is that, since the adoption of the Fourteenth Amendment, compensation for private property taken for public uses constitutes an essential element in 'due process of law,' and that, without such compensation, the appropriation of private property to public uses, no matter under what form of procedure it is taken, would violate the provisions of the federal Constitution."

The battle between these two interpretations continued. The case history I prefer is:

Harlan's Dissent in Twining v. State, 211 U.S. 78 (1908) at 114
Black's Dissent in Adamson v. California, 332 U.S. 46 (1947) at 68
Malloy v. Hogan, 378 U.S. 1 (1964)
Duncan v. Louisiana, 391 U.S. 145 (1968)