assurance of these rights
against encroachment by the States would not die. In spite of the
deliberate rejection of Madison's proposal the contention that the first
Ten Amendments were applicable to the States was repeatedly pressed upon
the Supreme Court. By a long series of decisions, beginning with the
opinion of Chief Justice Marshall in Barron _v._ Baltimore[11] in 1833,
the argument was consistently rejected. Nevertheless the enduring
vitality of natural law concepts encouraged renewed appeals for judicial
protection. Expression such as the statement of Justice Miller in
Citizens Savings and Loan Association _v._ Topeka that: "It must be
conceded that there are * * * rights in every free government beyond the
control of the States"[12] probably account for the fact, reported by
Charles Warren that: "In at least twenty cases between 1877 and 1907,
the Court was required to rule upon this point and to reaffirm
Marshall's decision of 1833, * * *"[13]

THE BILL OF RIGHTS AND AMENDMENT XIV

After the adoption of the Fourteenth Amendment, a fresh attack was
launched on that front. The rights assured against encroachment by the
Federal Government were claimed as privileges and immunities which no
State may deny to any citizen.[14] As early as 1884 the further
contention was made that the procedural safeguards prescribed by these
articles are essential ingredients of due process of law.[15] For many
years, the Court continued to reject these arguments also, over the
vigorous and prophetic dissents of Justice Harlan. With respect to the
due process clause it held that these words have the same meaning in the
Fourteenth Amendment as in the Fifth, and hence do not embrace the other
rights more specifically enumerated in the latter, there being no
superfluous language in the Constitution.[16] In 1897, however, it
retreated from this position to the extent of holding that the Fifth
Amendment's explicit guarantee against the taking of private property
without just compensation is included in the due process clause of the
Fourteenth.[17] Later cases have established that the terms, "liberty"
and "due process of law" as used in Amendment XIV, render available
against the States certain fundamental rights guaranteed accused persons
in the Bill of Rights[18] and the substantive rights which are protected
against Congress by Amendment I.[19]

Notes

[1] 1 Stat. 51 n.

[2] Elliot, The Debates in the Several State Conventio