Selective Incorporation apgoPo Excerpt of the text of the Fourteenth Amendment

The Warren Court and the Heyday of Selective Incorporation

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The Warren Court and the Heyday of Selective Incorporation

In 1953, President Eisenhower nominated Earl Warren to be chief justice of the Supreme Court. Warren’s term, which lasted until 1969, was one of the most important in the history of the Court. The Warren Court handed down several landmark cases that almost completely incorporated the first eight amendments into the due process clause of the Fourteenth Amendment.

In Engel v. Vitale (1962), the Court declared that state-sponsored prayer in public schools violates the establishment of religion clause of the First Amendment. The case effectively ended prayer in public schools that was written or led by school officials. A year later, in Abbington School District v. Schempp (1963), the Court ruled that officially sanctioned Bible reading in public schools violates the establishment clause. These cases began the process of disentangling state governments from religious activities and laid the foundation for the “Lemon Test” articulated by the Court in 1971.

The Warren Court also affected a revolution in criminal procedure at the state level. The Court expanded the rights of suspects under the Fourth, Fifth, and Sixth Amendments, and applied those rights to the states. Mapp v. Ohio (1961) applied the “exclusionary rule” to the states, preventing illegally obtained evidence from being admitted at trial. In Gideon v. Wainwright (1963), the Court ordered states to provide counsel, at state expense, to indigent defendants in felony cases. This ruling forced states to retry or release thousands of inmates in state custody who had been convicted without benefit of counsel. Miranda v. Arizona (1966), arguably the most sweeping of the Warren Court decisions, held that the police must notify suspects of their rights before interrogation. Writing for the Court in Miranda, Warren stated:

At the outset, if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that [he] has the right to remain silent . . . that anything said can and will be used against the individual in court . . . that he has the right to consult with a lawyer and to have the lawyer with him during interrogation . . . [and] that if he is indigent, a lawyer will be appointed to represent him.

Mapp, Gideon, and Miranda are the most famous of the Warren Court’s cases concerning criminal procedure, but they barely scratch the surface of the Court’s activity in this area. Between 1961 and 1969 the Court incorporated 11 provisions of the Fourth, Fifth, and Sixth amendments. Benton v. Maryland (1969), decided on the last day of Warren’s tenure on the Court, incorporated the protection against double jeopardy. In the years after Chief Justice Warren’s retirement, the Court has incorporated only one other provision of the Bill of Rights.12

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