Incorporation of the Sixth Amendment through Clarence Earl Gideon.

The Supreme Court's role of interpreting the United States Constitution has greatly expanded over the past two hundred years. Federalism, or the dual sovereignty of both states and the national government has caused conflict over the federal preemption of a domain seemingly reserved to the states, due to overlapping authorities. State affairs affect individuals because individuals possess a national and state identity. Therefore, these two realms overlap, giving the national government the power to find a balance between states' and personal rights.

The separation of powers has encouraged the judicial branch to resolve this problem through observing the changes in society. The creation of the Fourteenth Amendment has led to the debate over whether the Bill of Rights should be incorporated to limit states' power and to protect individual liberties, and to what degree. As society and politics have changed over time, the Supreme Court has shifted from protecting states' rights to control, to limiting the power of state and local governments and protecting individuals.

Through analyzing the development of the United States Constitution through various Supreme Court cases, I will prove that the Supreme Court has shifted from favoring states' rights to protecting civil liberties, leading to the incorporation of the Sixth Amendment with the case of Gideon v. Wainwright. The history of the US Constitution played a significant role in the creation of Federalism and led to debate over the nationalization of the Bill of Rights. Initially, people feared a strong national government because that is what they had just escaped from in Europe.

The public generally favored states' rights because local government is closer to the people and more responsive to their needs. The founding fathers did not originally include a Bill of Rights; however, during ratification, Anti-Federalists strongly criticized the new frame of government. In order to ratify the Constitution, Federalists agreed to create a Bill of Rights to protect states' rights. This was a necessary compromise to pass the Constitution because ten out of thirteen states had to ratify the document.

By giving states more power, they were more likely to accept this new federalist system. The necessity of uniformity through the Constitutional compromise has transformed America from a league of states to a united nation. Conflicts among states can be resolved with a national government. Every state had its own constitution which protected civil liberties; however, local governments did not always live up to these ideals. This led national government to claim that incorporating the Bill of Rights was unnecessary. In the 1833 case of Barron v.

Baltimore, the question was raised whether the Fifth Amendment limited the state as well as national governments, from denying the right to property without compensating for the owner's losses. The Supreme Court unanimously decided that the guarantees of the ten amendments do no apply to the states, citing that the founders' intentions were to only restrict the national government. This decision set a precedent favoring the power of states, making them only subject to their own constitutions until after the Civil War.

On the other hand, the Supreme Court has the power of judicial review, as established in Marbury v. Madison, which allows them to overrule previous decisions as society changes. The Supreme Court has taken the role of interpreting the Constitution in order to account for change in society and public opinion. After the Civil War, the ratification of the Fourteenth Amendment slowly placed more restrictions on state power to overrule the Barron decision. The Fourteenth Amendment states:

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. (Section 1) The founders intended these new provisions to "assist newly freed slaves in the transition to freedom and to protect them from acts of the Southern states" (Mount 1).

With the legal elimination of slavery, the Courts tried to define special circumstances in order to protect certain individuals, especially newly freed slaves. The Fourteenth Amendment granted them citizenship and attempted to protect their rights as human beings through the "equal protection" clause. The Fourteenth Amendment was intended to protect the rights of citizens from state law, in the same way the Bill of Rights protected citizens from national government (Perry 81). It is important to note that people would not be protected similarly to the Bill of Rights, but "in the same way.

" Otherwise the states' would have more power to adjust the Bill of Rights to fit their needs. Although the founders also believed that the "due process clause" could become the basis for "guaranteeing fundamental individual rights against deprivation by state and local governments" (Cortner 1), the Supreme Court refused to assign it such an important role in the protection of civil liberties at this time. In the Slaughterhouse Cases in 1873, the Court presented a narrow view of the "privileges and immunities" clause, declining to recognize independent substantive content (Goldman 2002).

They claimed that the Bill of Rights only applied to the national government because state constitutions were supposed to protect individual liberties. This was another win for the protection of states' rights; however, this issue was far from over. The Supreme Court originally interpreted the "due process" clause narrowly by only considering procedural due process. Eventually they concluded the Fourteenth Amendment protected substantive due process, too. Due process refers to how and why laws are enforced. In Hurtado v. California, in 1884, the Supreme Court ruled that there was no requirement for a grand jury in state criminal proceedings.

The majority argued, "any legal proceeding that protects liberty and justice is due process" (Goldman 2002). This case defined the "due process" as merely procedural, defining which steps must occur in the judicial process. This limited view of "due process" allowed the states to gain more control over the methods in which they ran their government. It is important to note that Justice Harlan dissented by stating "no judicial tribunal has authority to say that [the Bill of Rights] may be abridged (disregarded) by the States" (Harlan, Maxwell v.

Dow). This was not a unanimous decision and Harlan's dissent suggests that the Court's opinions will be challenged and debated in future cases. The span of the "due process" clause was extended to include substantive rights when businesses revealed that there were some governmental actions affecting liberty and property that were "illegitimate under the due process clause regardless of how such actions were carried out" (Cortner 2) in the 1890 case, Chicago, Milwaukee and St. Paul Railroad v. Minnesota.

Substantive due process requires that laws be fair in substance and protects the freedoms of the First Amendment. This definition of due process led the First Amendment substantive rights to be nationalized. With Twining v. New Jersey, in 1908,Twining was charged with a misdemeanor and he declined to testify by the Fifth Amendment. However, the Court ruled that self-incrimination was not a fundamental right. Only rights that are "so fundamental that there could be no due process without it" can be incorporated (Schwartz 211).

Therefore defining the term "fundamental rights" became a significant issue and was debated in several cases before any amendment was nationalized. In 1925, Gitlow v. New York became the first case to incorporate part of the Bill of Rights-especially freedom of speech and press-through the Fourteenth Amendment. The Court favored personal liberties rather than states' rights claiming that people have "fundamental rights" that cannot be violated because they are substantive rights. With the expanded meaning of due process, the Supreme Court has set itself up to shift the balance in favor of individual liberties.