Lesson 16: The Constitutional Bases of Our Liberties
In this lesson, we will talk about the protections listed specifically in
the original Constitution, including writ of habeas corpus, bill of attainder,
and ex post facto law. We will then look at how the 14th Amendment has led to
incorporation theory, where many of these protections that originally only
applied to the federal government have now been extended to state governments.
Our civil liberties may have been granted by the Bill of Rights, but that
was not the only place. The Constitution itself mentions certain protections in
Article 1, Section 9.
Among the protections listed are writ of habeas corpus, bill of attainder, and
ex post facto. What does it mean by all that legal jargon?
Throughout history and
even in modern times in
places throughout the world, there have been instances when prisoners have been
held without prosecution. In most cases, this practice is used to detain
political opponents.
Habeas corpus means, literally,
"you have the body."" A writ of habeas corpus is an order that
requires jailers to
bring a prisoner before a court or judge and explain why the person is being
held.
After September 11, 2001,
America found itself in
a struggle to uphold individual rights while detaining suspected terrorists.
Not only have prisoners been held without reason,
but some have been punished for crimes before they were proven guilty.
A Bill of Attainder is a law that inflicts punishment without a trial.
This kind of law is expressly prohibited in Article 1,
Section 9 of the Constitution.
Another interesting action expressly prohibited by the Constitution is the Ex
Post Facto Law.
That is a law that inflicts punishment for an act that
was NOT illegal at the time it was committed.
Laws change, and as they do, something could be legal one day and
then illegal the next. A person should not be held accountable for something
they did yesterday that is made illegal today.
The prohibition against Bills of Attainder and
Ex Post Facto Laws is explicitly extended by the Constitution to apply to
the states as well as the federal government.
At first,
the Bill of Rights was only intended to
limit the powers of the national government. Each state had its own Bill of
Rights.
However, the 14th Amendment was passed that
says, "No State shall... deprive any person of life, liberty, or property,
without due process of law."
In 1833, the Supreme Court ruled that the Bill of Rights did NOT extend to
the states, but later in 1868, the 14th amendment was ratified and that
perspective has gradually changed.
The Supreme Court has been reluctant to rule that
the 14th Amendment protects certain liberties from state infringement.
The Incorporation Theory is the view that
the protections of the Bill of Rights apply to
state governments through the Fourteenth Amendment's due process clause.
Over the years, the Supreme Court has slowly *incorporated* the Bill of Rights
into the 14th Amendment, one Amendment at a time, beginning with the Freedom of
speech in 1925 and more recently, the Right to bear arms in 2010.