The Supreme Court and the Second Bill of Rights: The Fourteenth Amendment and the Nationalization of Civil Liberties.

This chapter traces Hague’s appeal through the Third Circuit Court of Appeals into the U.S. Supreme Court under Chief Justice Charles Evans Hughes, showing how the Hughes court’s inner dynamics explain affirmation of the district court injunction. Observing flux in court personnel and law, the chapter shows that both courts embraced the contemporaneous civil liberties revolution by defending worker speech and assembly rights, but it reveals the Supreme Court as divided over constitutional logic. Justice Owen Roberts’s plurality opinion upheld speech and assembly rights under the Fourteenth Amendment privileges and immunities clause, Justice Harlan Fiske Stone’s concurrence incorporated the First Amendment into the Fourteenth Amendment due-process clause, and dissenters rejected federal jurisdiction. The ruling reflected the contentious evolution of civil liberties jurisprudence, not antiboss or labor law politics.

Download Full-text

The Supreme Court and Civil Liberties

Alberta Law Review ◽

10.29173/alr2331 ◽

1969 ◽

pp. 58

Author(s):

W. S. Tarnopolsky

Keyword(s):

Human Rights ◽

Supreme Court ◽

Civil Liberties ◽

Supreme Court Of Canada ◽

Bill Of Rights ◽

The Supreme Court ◽

Fundamental Freedoms ◽

Important Direction

To what extent has the Supreme Court of Canada tended to promote human rights and protect fundamental freedoms? This question is examined by looking at the bases on which the Supreme Court can protect civil liberties. In decisions prior to 1950 the author finds that the Supreme Court was not protective of "egalitarian" civil liberties. With respect to "political" civil liberties, the author finds the majority judgments of the Supreme Court of Canada of the 1950's inspiring. The enactment of the Canadian Bill of Rights in 1960 provided an important direction to the Court to protect civil liberties. The author feels that the Supreme Court has not yet satisfac torily responded to this direction. However, the Drybones decision recognized the constitutional status of the Bill of Rights and the author supports the argument that it is constitutional instrument.

Download Full-text

Altering the Judicial Mind and the Process of Constitution-Making in Canada

Alberta Law Review ◽

10.29173/alr1613 ◽

1969 ◽

pp. 521

Author(s):

Bruce P. Elman

Keyword(s):

Supreme Court ◽

Civil Liberties ◽

Bill Of Rights ◽

Concomitant Change ◽

The Supreme Court ◽

Judicial Attitudes ◽

Constitution Making

This essay deals with the alteration of the Supreme Court of Canada's approach when confronted with alleged violations of civil liberties in the pre-Charter and post-Charter eras. It is noted that certain statutes, such as the Lord's Day Act, were upheld under the Canadian Bill of Rights, but have since been struck down under the Charter of Rights and Freedoms under relatively circumstances. The author asserts that the changes in the approach to civil liberties, and the changes in the Supreme Court's decisions, are the result of a change in judicial attitudes. Among the factors responsible for acting as a catalyst for this shift in attitude, the author identifies and discusses the change in "principle" resulting from the constitutionalization of rights and the concomitant change in the Courts role, the change in "personalities" resulting from changes in the composition of the Supreme Court, and the "process of constitution-making" used in entrenching the Charter, which gave more legitimacy to the Court's role as interpreter of the Constitution than did the Bill of Rights.

Download Full-text

The Supreme Court and the Second Bill of Rights: The Fourteenth Amendment and the Nationalization of Civil Liberties.Richard C. Cortner

The Journal of Politics ◽

10.2307/2130530 ◽

1982 ◽

Vol 44 (3) ◽

pp. 898-900

Author(s):

David Adamany

Keyword(s):

Supreme Court ◽

Fourteenth Amendment ◽

Bill Of Rights ◽

The Supreme Court

Download Full-text

Text and Textualism

10.1093/oso/9780197555972.003.0002 ◽

2021 ◽

pp. 17-34

Author(s):

George Thomas

Keyword(s):

Supreme Court ◽

Due Process ◽

Fourteenth Amendment ◽

Bill Of Rights ◽

The Supreme Court

This chapter focuses on Justice Hugo Black, the most prominent modern advocate of constitutional textualism to sit on the Supreme Court, revealing the unwritten understandings that drive Black’s textualist jurisprudence. Justice Black was most famous for advocating that the Fourteenth Amendment applied to the Bill of Rights to the states. Black argued that the liberty protected by the due process clause included, and only included, rights enumerated in the Bill of Rights. Black was famous for his constitutional literalism, pointing to his pocket Constitution to ask where a right like “privacy” was found in the Constitution. Yet Black’s own interpretation relied on his desire to cabin and limit judicial will much more than on constitutional text. It was Black’s understanding of the role of the judiciary in a democracy—and not constitutional text—that drove his jurisprudence of incorporation.

Download Full-text