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Changing the Constitution
between a State and its citizens. In Barron v. Baltimore (1833), a unanimous
Supreme Court, speaking through Chief Justice Marshall, held that no
provision of the Bill of Rights applied to the States.
Beginning in 1925 in the case of Gitlow v. New York, however, the Court
initiated a series of decisions that resulted in the nationalization of the
Bill of Rights. By 1947, every provision of the First Amendment had been
made applicable to the States, and in the 1960s most provisions of the Bill
of Rights protecting Federal criminal defendants were also applied to
State proceedings. The vehicle used to accomplish this result was the Due
Process Clause of the Fourteenth Amendment, which provides that, ‘‘No
State shall deny any person life, liberty or property without due process
of law.’’ Focusing on the word ‘‘liberty’’ in the clause, the Supreme Court
expanded it to include various provisions of the Bill of Rights, thereby
making the restrictions against the Federal government in the Bill of
Rights applicable to the States through the Fourteenth Amendment. In
this way, for example, freedom of the press was incorporated into the
word ‘‘liberty’’ of the Fourteenth Amendment, thereby giving the Federal judiciary the final say on the scope and meaning of this freedom at
both the State and Federal level through its power of judicial review.
Aside from the fact that the Doctrine of Incorporation has considerably
enhanced the power of the Supreme Court and brought about a significant
shift of power from the State to the national courts, this interpretive device
has also resulted in extensive changes of the liberties themselves. Thus before the Supreme Court first applied the Establishment Clause of the First
Amendment to the States in the landmark case of Everson v. Board of Education (1947), it was a common practice in many States to encourage religion and promote religious morality. Since 1947, however, the Supreme
Court has held that almost any aid of any kind to religion constitutes an
unconstitutional establishment of religion. This includes voluntary, nondenominational prayers in the public schools, which have been outlawed
since 1962 as a result of Engel v. Vitale (the New York Prayer Case).
Many constitutional scholars question whether the Framers and backers of the Fourteenth Amendment intended by its provisions to abolish the
federalism of the Bill of Rights and overturn Barron v. Baltimore, and the
Doctrine of Incorporation has therefore engendered widespread criticism,
even among members of the Federal Judiciary. Whatever its merits, the