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CONSTITUTIONAL
RIGHTS FOUNDATION
Bill of Rights in Action Spring
1991 (7:4) The 14th Amendment This Bill of Rights in Action looks at issues related to the 14th Amendment, particularly its "due process" and "equal protection" clauses. The first article is from world history and examines a gross violation of due process: the Stalin show trials of the 1930s. The second article looks at how the 14th Amendment's due process clause has been interpreted to make most of the Bill of Rights apply to the states. The last article examines a case about whether the equal protection clause prevents states from denying public education to undocumented immigrant children. World History: The Stalin Purges and "Show Trials" U.S. History: The 14th Amendment and the "Second Bill of Rights" U.S. Government: Education and the 14th Amendment The Stalin Purges and "Show Trials" In 1936, Joseph Stalin produced a new constitution for the Soviet Union. The constitution guaranteed Soviet citizens freedom from arbitrary arrest and the right of defense in a public trial before an independent judge "subject only to the law." These rights seemed to parallel those found in the U.S. Constitution. For example, the Fifth and 14th amendments prohibit the national government and the states from depriving any person of "life, liberty, or property, without due process of law . . . ." Ironically, when Stalin introduced his new constitution, he was also engineering the arrest of thousands of Communist Party and government officials. Most of those arrested were tried in secret or received no trial at all. A small minority of well-known Soviet officials did receive highly publicized public trials in Moscow between 1936 and 1938. Often based on forced confessions, the trials made a mockery of the idea of due process of law. All the participants of these so-called "show trials," including the judges, served Stalin's political evil. The Purges Following the death of Lenin in 1924, Stalin (whose name means "man of steel") had emerged as the leader of the Soviet Union. By 1930, his chief rival, Leon Trotsky, had fled the country. But Stalin still wanted everyone in the Communist Party and Soviet government to bend to his will. During the early 1930s, the Soviet economy failed. Massive food and consumer shortages plagued the Soviet people. To increase trade exports, Stalin ordered the government to confiscate all grain crops from Soviet peasants. As a result, 5 million died of starvation. As word of the deaths and failures in the economy spread, criticism of Stalin grew within the Communist Party. In response, Stalin activated his secret police and a system of informers. Their job was to seek out and arrest "the enemies of the people who sow discord in the Party." Thousands of mostly rank and file members resigned or were expelled from the party. Many ended up banished to prison camps or deported from the country. Stalin's effort to purge (cleanse) the Communist Party of people who posed any threat to his control had begun. At the 17th Communist Party Congress in 1934, Sergei Kirov, a top party official, called for restraint in carrying out the purges. Later, nearly 300 of the 1,225 delegates to the Congress voted against Stalin, the leader of the party. Some of the delegates even suggested that Kirov replace Stalin as party leader. The fact that these delegates dared to question Stalin's leadership apparently goaded him to go after the party elite. The Terror On December 1, 1934, less than a year after he was mentioned as a possible replacement for Stalin, Sergei Kirov was assassinated. The details of the assassination still remain a mystery, but much circumstantial evidence indicates that the head of the Soviet secret police planned Kirov's murder on orders from Stalin. In any case, the assassination of an important Communist Party official gave Stalin the pretext for intensifying the purges. Immediately after the assassination, the secret police rounded up over 100 "conspirators" and executed them. Thousands more were accused of belonging to "terrorist centers" and were shot, imprisoned, or exiled to Siberia. Still, Stalin was not satisfied. Technicians, teachers, and other government employees found themselves trapped in Stalin's dragnet. Stalin then turned on the state's security forces. Over 3,000 secret police agents were shot and one-third of the military officer corps were executed. Stalin replaced those killed with younger people loyal to him, not with the older generation of revolutionaries. While the new Soviet Constitution of 1936 provided for due process guarantees such as the right to defend oneself in a public trial, Stalin took steps to "simplify" the judicial system. He eliminated the right of defense. He sped up trials and often held them in secret. He suppressed the right of appeal. He expanded the death penalty to cover hundreds of offenses and extended it to children as young as age 13. The use of terror by Stalin and his henchmen ensnared thousands and then millions of Soviet citizens, most of whom were innocent of any wrongdoing. The terror process began with denunciations. Louis Fischer, an authority on Soviet history, explained it this way:
Arrests usually occurred in the dead of night. Individuals later found themselves held in "detention" for days and weeks without any formal charges. Stalin often persecuted people not for what they did, but for who they were. Anyone having anything to do with foreigners or foreign countries automatically became suspects of spying. This included entire groups of people such as foreign language teachers, members of pen pal organizations, even stamp collectors. Those with religious backgrounds like Catholic priests, Jehovah's Witnesses, and Jews were arrested in large numbers. Agricultural officials, factory managers, and engineers were frequently accused of economic sabotage known as "wrecking." They were blamed for railway accidents, livestock diseases, crop failures, and hundreds of other shortcomings in the Soviet economy. Finally, Communist Party officials at higher and higher levels were arrested and charged with being "oppositionists" or followers of Stalin's hated rival, Leon Trotsky. The Confessions Stalin demanded confessions from his victims. To extract these confessions, the secret police resorted to a variety of methods. The "conveyor" involved the continuous interrogation of a person by relays of police for hours and even days at a time. Intellectuals and the party elite were often subjected to the "long interrogation" by a single interrogator who carried on his questioning sometimes for weeks and months. Some people confessed when police interrogators threatened family members. Others hoped that by cooperating they would save themselves. Many confessed under beatings and torture, at first an unofficial means of gaining a confession. In 1937, Stalin made torture the official and usual method of getting confessions. Stalin reportedly ordered the secret police to "beat, beat, and beat again." Many caught up in the mass arrests invented "crimes" so that they could confess to something. Many admitted guilt without even knowing the charges. However, some top Communist Party officials arrested on orders from Stalin confessed for quite another reason. These members of the old generation of revolutionaries came to power with Lenin in 1917 and had such faith in the party that they refused to believe it could ever be wrong. In Arthur Koestler's novel, Darkness at Noon, the main character named Rubashov is falsely accused of plotting the assassination of "No. 1"(Stalin). Rubashov finally "confesses" after declaring, "I will do everything which may serve the Party." In the novel, he willingly took a bullet in the head after becoming convinced that he must be guilty because the party said so. The "Show Trials" Few of the thousands arrested during the Stalin purges ever saw a Soviet courtroom. Special secret police boards sentenced defendants without them even being present. "When it is a question of annihilating the enemy," Stalin's chief prosecutor pronounced, "we can do it just as well without a trial." Between 1936 and 1938, however, Stalin conducted three "show trials" involving about 50 top Communist Party leaders and government officials. Stalin wanted to convince the world's press that accused criminals were being treated fairly. Also, these scripted trials were intended to discredit the old generation of Communists who still posed a potential threat to Stalin's rule. The most serious charge leveled at the defendants was that they conspired with Trotsky (who lived in exile outside the USSR) to assassinate Lenin, Stalin, and other Soviet leaders. In addition, the accused were charged with spying for foreign powers and sabotaging the economy. The evidence consisted almost entirely of the confessions of the defendants themselves. State-appointed attorneys, when they were permitted, played little role in the proceedings. The most spectacular of the "show trials" was the last, held in March 1938. With Stalin looking on from a darkened viewing area, the script of the trial almost fell to pieces on the first day when defendant Nikolai Krestinsky refused to plead guilty. After a night with his interrogators, he reversed himself. "I fully and completely admit that I am guilty of all the gravest charges brought against me personally," a subdued Krestinsky said. The most important defendant at this trial was Nikolai Bukharin, known as the "Heir of Lenin." Following the first "show trial" in 1936, Bukharin accused Stalin of trying to take over the Communist Party to increase his personal power. A year later, Bukharin was arrested. After interrogations that went on for more than a year, Bukharin confessed to belonging to a 'Trotskyite Bloc" whose purpose was to restore capitalism to the USSR. While confessing to the general charges, Bukharin denied committing specific criminal acts such as plotting the deaths of Lenin and Stalin. Andrei Vyshinsky, the chief prosecutor, summed up the case against the 21 defendants at the last "show trial." He referred to them as "a foul-smelling heap of human garbage." As for Bukharin, Vyshinsky called him "the damnable cross of a fox and a swine." The chief prosecutor went on to demand that the accused "must be shot like dirty dogs!" He then concluded with this tribute to the leader of the Soviet Union:
The judge found all the defendants guilty on all the charges (there were no jury trials in the Soviet judicial system). All were subsequently shot. During the peak of the Stalin purges (1937-38), over 7 million Soviet citizens were arrested. Of these, more than a million were executed. Millions more died in the gulags (prison camps) of Siberia. Stalin's last major enemy, Leon Trotsky, was assassinated in Mexico in 1940. With Trotsky's death, Stalin had finally obliterated the old generation of Communists and replaced them with a new generation of party and government officials completely in the grasp of the "man of steel." For Discussion and Writing
For Further Information Chronology of Russian History A timeline of events with links. Internet Modern History Sourcebook: Stalinism Primary source documents. Stalin Internet Library A collection of his written works and speeches. Joseph Stalin Reference Archive Another collection of his works. Biographies of Stalin:
The History Guide Bibliography of works on Stalin Leon Trotsky Museum: Murder and Marxism in Mexico City Freedom of Information Act: Documents relating to the murder of Trotsky Biographies of Trotsky:
August 11, 1997 issue of Art Bin magazine:
Revelations From the Russian Archives An exhibit from the Library of Congress. Great Purges From Spartacus Educational. Sergei Kirov The Purge By Professor Gerhard Rempel, Western New England College. From his lectures. The Moscow Trial Article condemning the trials from Socialist Appeal: An Organ of Revolutionary Socialism, Vol 2, No. 9, October 1, 1936. The Kirov Murder The site includes a short biography of Kirov, description of his murder, discussion of the aftermath and import of Kirov's death, photo gallery of the people and places, and review of a book on the murder. Books on Stalin:
A C T I V I T Y What Is a Forced Confession? In 1936, Stalin put on his first "show trial" featuring "confessions" that we know today were the result of all sorts of intimidation and even torture. That same year, the U.S. Supreme Court held that forced confessions should be excluded from state criminal trials (Brown v. Mississippi, 297 U.S. 278). The Supreme Court ruled that such confessions denied defendants "due process of law" under the 14th Amendment and that their use should overturn a conviction. But in a case decided in 1991 (Arizona v. Fulminante, 499 U.S. 279), the Supreme Court decided that a forced confession admitted into evidence would not automatically overturn a defendant's conviction. If enough other evidence existed for conviction, the use of a forced confession could be considered "harmless error" and the conviction could stand. In this activity, first meet in small groups and decide which of the following should be considered as a "forced confession":
Be prepared to share your group's conclusions and reasons with the rest of the class. Your group should also take a position on this question: Should any "forced confession" ever be admitted into court? Why or why not? The 14th Amendment and the "Second Bill of Rights" In 1815, John Barron, a successful businessman, owned a wharf located at the deepest part of Baltimore's harbor. That year, several city street improvement projects diverted streams, which caused soil to build up in front of Barron's wharf. By 1822, no ships could tie up at the wharf and John Barron was out of business. Barron went to a state court and sued the city of Baltimore for destroying his wharf business. According to the Fifth Amendment of the Bill of Rights, Barron argued, private property could not be taken or reduced in value for public use without "just compensation." The case finally ended up before the U.S. Supreme Court. Writing for the majority of the Supreme Court, Chief Justice John Marshall dismissed Barron's lawsuit on the grounds that the Fifth Amendment, as well as all the amendments of the Bill of Rights, applied only to the national government and not to the states. [Barron v. Baltimore, 7 Peters 243 (1833)] The Barron decision established the principle that the rights listed in the original Bill of Rights did not control state laws or actions. A state could abolish freedom of speech, establish a tax-supported church, or do away with jury trials in state courts without violating the Bill of Rights. The Due Process Clause In the first Congress in 1789, Congressman James Madison had submitted proposed amendments for the Bill of Rights. One of Madison's proposed amendments would have prohibited states from violating the rights of conscience, freedom of the press, and trial by jury in criminal cases. The House passed Madison's proposed amendment. But the Senate rejected it because all the states already had their own bills of rights. The first 10 amendments thus limited only the national government. When members of Congress debated the 14th Amendment after the Civil War, they hardly discussed whether the amendment made the entire Bill of Rights apply to all the states. A key provision of the amendment is its due process clause: ". . . nor shall any State deprive any person of life, liberty, or property, without due process of law . . . ." Did this due process clause apply all the guarantees in the Bill of Rights to the states? Or, did it merely refer to those rights related to a fair trial like the identically worded due process provision in the Fifth Amendment? Raoul Berger, a scholar who wrote extensively on the 14th Amendment, argued that the elusive due process clause was simply intended to protect the civil rights of the ex-slaves in the South following the Civil War. When the Supreme Court interpreted the 14th Amendment for the first time in 1873, the justices avoided ruling on the meaning of the due process clause [Slaughterhouse Cases, 16 Wallace 36 (1873)]. The Supreme Court did eventually begin to rule on its meaning. In 1897, the justices unanimously held that the due process clause required state and local governments to give "just compensation" for taking private property for public purposes. Still, this decision (which would have pleased John Barron) did not connect the due process clause of the 14th Amendment to the Bill of Rights. According to the Supreme Court, "just compensation" was a right within the meaning of the due process clause itself. [Chicago Burlington & Quincy Railroad Co. v. Chicago, 166 U.S. 226 (1897)] The Supreme Court first applied the Bill of Rights to the states in 1925 in the Gitlow case. Benjamin Gitlow was a Socialist Party member who had been convicted of writing several revolutionary pamphlets in violation of New York's Criminal Anarchy Act. His attorneys argued that the New York law violated Gitlow's First Amendment freedom of speech. They contended that the due process clause of the 14th Amendment protected a citizen's freedom of speech from state laws as well as national law. While upholding Gitlow's conviction, the Supreme Court ruled for the first time that the First Amendment freedoms of speech and press "are among the fundamental personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the States." [Gitlow v. New York, 268 U.S. 652 (1925)] The Supreme Court did not say in the Gitlow decision that all the protections of the Bill of Rights applied to the states. But the majority of justices did agree that at least some of these rights limited the powers of state and local governments. Following this landmark decision, the Supreme Court on a case-by-case basis applied most of the guarantees of the Bill of Rights to the states. When the last of these cases was decided in 1969, the Supreme Court had created what amounted to a "second bill of rights" limiting the actions of state governments just as the original Bill of Rights had limited the national government. See the chart below: The "Second Bill of Rights"
"Fundamental Rights" and the "Incorporation Doctrine" By 1937, freedom of speech, press, religion, assembly, and petition had all been "incorporated" into the 14th Amendment's due process clause. This meant that these First Amendment freedoms were now also part of the 14th Amendment, which limited state laws and actions. The Supreme Court had yet to explain why some rights from the Bill of Rights had been "incorporated" while others had not. In a case involving the Fifth Amendment protection against double jeopardy (being tried twice for the same crime), Justice Benjamin Cardozo explained that only "fundamental rights" need be "incorporated" into the 14th Amendment. He went on to define these rights as "of the very essence of a scheme of ordered liberty" and "rooted in the tradition and conscience of our people." While such rights as freedom of speech were clearly "fundamental," according to Justice Cardozo and the Supreme Court majority, others were not. Thus, the Supreme Court established the principle of "partial incorporation": Only certain "fundamental rights," not the entire Bill of Rights, apply to the states through the due process clause of the 14th Amendment. [Palko v. Connecticut, 302 U.S. 319 (1937)] By 1972, the Supreme Court had "incorporated" into the 14th Amendment all but five rights named in the Bill of Rights. Those rights still not deemed "fundamental" include the Second Amendment right to bear arms, the Third Amendment protection against quartering troops in private homes, the Fifth Amendment right of grand jury indictment, the Seventh Amendment right of trial by jury in civil cases, and the Eighth Amendment guarantee against excessive bail and fines. (The Ninth and Tenth amendments do not name specific personal rights.) As a practical matter today, the Bill of Rights protects Americans from both national and state governments. In the view of scholar Richard Cortner, the Supreme Court "has transformed the Due Process Clause of the Fourteenth Amendment into our second bill of rights, a bill of rights more salient [significant] to the liberty of the average American than the original document authored by Madison and ratified by the states in 1791." For Discussion and Writing
For Additional Information An Important Piece of U.S. Constitutional History: The Doctrine of Incorporation A summary of the development of the doctrine. From Freedom Writer. The Incorporation Debate Good overview of the debate. From Exploring Constitutional Conflicts by Doug Linder, University of Missouri-Kansas City School of Law. The Liberty Lion Should Be Man of the Century Article argues that all the rights in the Bill of Rights should be incorporated into the 14th Amendment. It includes a good history of incorporation. By Nat Hentoff. Intent of the Fourteenth Amendment Was to Protect All Rights Long argument favoring full incorporation. The Big Lie Argument against incorporation. From James Bemis in the Catholic Exchange. Fourteenth Amendment: Selective Incorporation Discussion of the debate, includes the original proposals sent from the House to the Senate and an extensive bibliography. Civil Liberties A slide presentation that includes talking points on incorporation. By Barbara Norrander, professor of political science, University of Arizona. James Madison Proposes the Bill of Rights to the House of Representatives Explanation by Dennis Bent and the text of Madison's proposal. From the James Madison Center. Books:
A C T I V I T Y Meet in small groups to role play the following hypothetical case: Imagine that the United Nations has unanimously agreed that every country in the world should maintain fundamental human rights. Using the U.S. Bill of Rights as a model, a special committee has reported back to the United Nations with a list of 22 rights. Many countries believe this list includes too many rights. The United Nations has now forwarded this list to you with instructions to choose the seven most fundamental of these twenty-two rights. Because the United Nations may ultimately decide to include more or fewer than seven rights, you are also supposed to rank the rights in order of importance from 1 to 22 (1 is the most important; 22 the least important). You should also cross out any rights on the list that you think are not fundamental human rights and add any fundamental rights not currently on the list. (To decide what rights are fundamental, it may be helpful for you to refer to Justice Cardozo's definition of fundamental human rights in the article.) Be prepared to explain your group's conclusions to the rest of the class. List of 22 Rights
Debriefing Questions
Education and the 14th Amendment During the 1970s, a lot of people entered the United States illegally. Many came from Mexico to work for low wages in border states like Texas. Attorney General William French Smith testified before Congress in 1981 that most of the 3 to 6 million illegal aliens were living more or less permanently in this country. This situation led to questions about the legal status and rights of these persons. (They are often referred to as "undocumented workers" or "illegal aliens," because they have not obtained the papers necessary for being in the country.) The 14th Amendment prohibits any state from denying "to any person within its jurisdiction the equal protection of the laws." The equal protection clause clearly requires that all American citizens must be treated equally by the law. But does the equal protection clause also demand equal treatment for those who are not citizens or who have entered the United States illegally? In 1982, the U.S. Supreme Court decided the case of a group of children of undocumented workers who had been denied free public schooling by the state of Texas. After reading the background and arguments of this case, your class will have the opportunity to role play the Supreme Court hearing of this case. The Background of Plyler v. Doe In May 1975, the Texas state legislature passed a law authorizing school districts to deny enrollment to children who had not been "legally admitted" into the United States. Under this law, Texas school districts could either bar from the schools the children of illegal aliens or charge them tuition. The Tyler Independent School District in Smith County chose the second option. Several federal court lawsuits were filed against the Texas law. The first was a class-action suit filed in 1977 by legal defense attorneys on behalf of "certain school-age children of Mexican origin residing in Smith County, Texas, who could not establish that they had been legally admitted into the United States." A federal district court ruled in 1977 and again in 1980 that the state law violated the equal protection clause of the 14th Amendment. An injunction (court order) barred the state and the Tyler school board from denying free public schooling to the undocumented immigrant children. A federal appeals court in 1981 agreed with the lower court rulings. The Tyler school board and school superintendent, James Plyler, appealed to the U.S. Supreme Court. The Constitutional Questions In preparing their briefs for the Supreme Court hearing, the attorneys for the Tyler school district, as well as the attorneys for the undocumented immigrant children, had to address two basic constitutional questions:
The Arguments of the Appellants Attorneys representing the Tyler Independent School District, the appellants in this case, answered "no" to both of the constitutional questions. To support their position, the appellants offered the following arguments:
The Arguments of the Respondents The attorneys representing the undocumented immigrant children, the respondents in this case, answered "yes" to both of the constitutional questions. To support their position, the respondents offered the following arguments:
For Discussion and Writing
For Further Information Illegal Aliens: To Teach or Not to Teach Background and pros and cons on the issue. By Becky Smith. Illegal Immigrant Children: In or Out of Public Schools? An article outlining the positions of President Bill Clinton and candidate Bob Dole in the 1996 presidential election. From Education Week. Plyler v. Doe: A Visual A cartoon encapsulating the background to the case. Writing the Appellate Brief: The Argument Instructions on how to write an argument to an appeals court. The instructions use the Plyler case as the example. Undocumented Children in the Schools: Successful Policies and Strategies Suggestions on how schools should deal with undocumented students. From Eric Digests. Book: Abraham, Henry J. Freedom and the Court. 5th ed. New York: Oxford University Press, 1988. A C T I V I T Y Plyler v. Doe
Rules of Procedure These rules modify actual Supreme Court procedures for the purpose of conducting this class simulation:
U.S. Supreme Court Decision in Plyler v. Doe, 457 U.S. 202 (1982) By a 5-4 vote, the Supreme Court decided:
Writing for the majority, Justice William Brennan concluded: "We cannot ignore the significant social costs borne by our Nation when select groups are denied the means to absorb the values and skills upon which our social order rests." Writing for the four dissenters, Chief Justice Warren Burger stated: "By definition, illegal aliens have no right whatever to be here, and the state may reasonably, and constitutionally, elect not to provide them with governmental services at the expense of those who are lawfully in the state." Officers: Harry Usher, President; Alan Friedman, President-Elect; Publications Committee: Jerome C. Byrne, Chairperson, Bayard F. Berman, Justice Ronald M. George, Marvin Sears, Lloyd M. Smith, Daniel H. Willick, Marjorie Steinberg; Staff: Todd Clark, Executive Director, Marshall L. Croddy, Director of Programs and Material Development, Carlton Martz, Writer, Bill Hayes, Editor, Tina M. Esposito, Senior Associate Publications Manager; Lanning Gold, Publications Artist, Rita Nelson, Program Assistant, Carolyn Pereira, Director; National/Chicago Project. Reviewed by Lloyd M. Smith. Cristy Lytal and Bill Hayes, web editors. © 1991, 2003, Constitutional Rights Foundation, 601 South Kingsley Drive, Los Angeles, CA 90005, (213) 487-5590, www.crf-usa.org |