(Approved by Congress on June 13, 1866; ratified on July 9, 1868)
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Selective incorporation is the means by which the Supreme Court has, over time, applied most of the guarantees of the Bill of Rights to all citizens through an interpretation of the Fourteenth Amendment’s due process clause. The Bill of Rights, when ratified in 1791, applied only to the powers of the national government and did not apply to the states. The first five words of the First Amendment say it all: “Congress shall make no law. . . . ”
Because of this, civil liberties were protected to different degrees from state to state. While this was federalism in action, it resulted in a system where some inalienable rights were unenforced or disregarded in some states. These were the same rights and liberties that, when defended, forged the Union. As states were allowed to violate these rights, many asked if the Republic had been founded on false pretenses.
With the passage of the Fourteenth Amendment in 1868, a new era of civil liberty was born.
Section 1 states: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens . . . nor deprive any person . . . without due process of law . . . nor deny . . . the equal protection of the laws.” (Emphasis added.) Soon thereafter, the Supreme Court began exploring the reach of such words. It was argued in the Slaughterhouse Cases (1873) that certain privileges and immunities “belong of right to the citizens of all free governments.” These were the first, very limited steps toward applying the Fourteenth Amendment to state laws.
It was not until 1925, in Gitlow v. New York, when, for the first time, a Supreme Court majority ruled that a specific provision found in the Bill of Rights was a “privilege or immunity” to which all U.S. citizens were entitled, and no state could thus deprive. In Gitlow the Court used the language of the Fourteenth Amendment to “incorporate” the free speech clause of the First Amendment. Thus, the Supreme Court, not local or state governments, became the guarantor of basic civil liberties.