Interpretation Of The 14th Amendment

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In examining the Supreme Court’s interpretation of the 14th Amendment one has to look at the Bill of Right which it has been used to incorporate. The original Constitution was devoid of a Bill of Right guaranteeing citizens’ rights. The exclusion of the Bill of Right almost derailed the ratification of the Constitution as it was deemed essential. James Madison drafted 7 out of 10 of the Bill of Rights. Madison proposed language that would have made the Bill of Rights binding on the states; that verbiage did not make it into the final amendments.
In Barron v. Baltimore one of the first cases in which a person sought to apply the Bill of Rights to a state Justice Marshall surmised that the Constitution was drafted carefully as well as the Bill
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The 14th Amendment original intent was to protect Blacks in the New South after the Civil War. The 14th Amendment was broad in it writing and left much room for interpretation. The interpretation of the words “due process of law” has led to a decision just as vague and indecisive for the Court. Hurtado v. California was one such decision by the court that straddled the fence. It rejected the interpretation of the plaintiff’s due process clause but held the door open for later cases holding that “the states could not encroach upon fundamental principles of liberty and justice”. In examining the history of both the Bill of right and the 14th Amendment one can see the reluctance of the court to take two articles whose original intent was a far cry from the purposes that the court had before it. The court was being asked to take an article written to protect former slaves and the Bill of Right which was specifically written to apply to the federal government only and to merge the two thus incorporating the Bill of Right through the 14th …show more content…
The Court applied the fundamental and inalienable rights test in Gitlow v. New York and Palko v. Connecticut. In Gitlow it held the freedom of speech and the press were fundamental right which was incorporated. In Palko, it defined “fundamental rights” as those that if restrained liberty and the court again applied the d justice could not exist and implicit in the concept of ordered liberty. In San Antonio v. Rodriguez fundamental and inalienable rights test concluding that education was not a fundamental right.
In each case, the Court incrementally moved the bar on the incorporation of the Bill of Rights. Incorporation cases have spanned 177 years with Barron v. Baltimore (1833) to McDonald V. Chicago (2010). The Court was cautious during the first cases holding to the original intent while not wanting to close the door completely to incorporation. While the makeup of the Court changed over time the wiliness to depart from a previous decision of former Courts. The Court has held to the “fundamental principles of liberty and justice” and has refined it over the years. The biggest discrepancy is what it is willing to call a fundamental right and how it articulates how those rights relate to the implicit concept of ordered

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