Elsewhere efforts have been made to survey the status of the fundamental rights guaranteed by the Bill of Rights with respect to their protection against state abridgment. The decisions of the Supreme Court were examined, from the February term, 1790, through the 1942 term. It was observed that the struggle to obtain for these rights and liberties federal constitutional protection against state abridgment, as well as against federal abridgment, had been almost continuous since the adoption of the Constitution; that Madison had sought, unsuccessfully, to include in the Bill of Rights guaranties against state abridgment for freedom of speech and of the press, for religious freedom, and for the right of trial by jury in criminal cases; that notwithstanding this failure the force and vitality of the view that these rights and liberties must somehow be safeguarded by the Bill of Rights (without anything more) against state denial were so great and so irrepressible as to keep the question almost constantly before the Court from 1833 to 1913; that with the adoption of the Fourteenth Amendment in 1868, stronger bases on which to build the claim to constitutional protection became available, the contention being made--unsuccessfully, on the whole, but always with the support of a vigorous minority of the Court--for some fifty years that these liberties were privileges or immunities, protected by that clause of the amendment; and that eventually, in 1925, Gitlow v. New York established the protection for freedom of speech and of the press (guaranteed by the First Amendment), as integral elements of the "liberty" which the due process clause safeguards against state deprivation.
John R. Green,
LIBERTY UNDER THE FOURTEENTH AMENDMENT: 1943-44,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol43/iss3/2