Transcript The Bill of Rights and Selective Incorporation

The Bill of Rights and
Selective Incorporation
Bill of Rights
• First 10 Amendments
• Requested by delegates to state ratifying
conventions to limit the power of the new
federal government – not to limit the
power of their respective state
governments
• The only institution referred to by name in
the Bill of Rights is the federal Congress –
“Congress shall make no law”
Bill of Rights continued…
• The following amendment, proposed by Madison, was
not one Congress forwarded to the states for ratification:
“No state shall violate the equal rights of conscience, or the
freedom of the press, or the trial by jury in criminal cases”
• Barron v. Baltimore (1833)
• Supreme Court called upon for the first time to determine if
the Bill of Rights could be seen as limiting state power
Barron v. Baltimore (1833)
• Barron’s land was left barren
• Does the Fifth Amendment’s just
compensation clause apply to state/local
governments?
• No. The Bill of Rights restricts the federal
government
• Supreme Court’s decision in Barron
remained unchallenged until the passage
of the 14th Amendment
14th Amendment
• First section of this amendment creates a
national citizenship and contains three
clauses:
• Privileges and Immunities Clause
• Due Process Clause
• Equal Protection Clause
14th Amendment continued…
• Section 1:
“All persons born or naturalized in the United
States and subject to the jurisdiction thereof, are
citizens of the United States and of the state
wherein they reside. No state shall make or
enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor
shall any state deprive any person of life, liberty, or
property, without due process of law; nor deny to
any person within its jurisdiction the equal
protection of the laws.”
14th Amendment/Privileges and
Immunities Clause
• Slaughter Cases of 1873 – first opportunity for
the Court to limit state power under the 14th
Amendment
• Court asked to interpret the privileges and
immunities clause as establishing a national
right to practice one’s occupation free of statecreated monopoly
• Court disagreed in a 5-4 decision. Privileges and
immunities limited only to those listed in the
Constitution
14th Amendment/Privileges and
Immunities Clause
• Only forbids the states from withholding the
privileges and immunities belonging to American
citizenship, not state citizenship.
• Bans any state from discriminating against outof-state citizens residing within its boundaries.
The Constitution does not, however, require a
state to grant special privileges, like a right to
start a slaughterhouse, to every one of its own
citizens.
• Eliminated the Privileges and Immunities clause
as a vehicle for applying the Bill of Rights to the
states.
14th Amendment/Due Process
Clause
• Proved to be a successful vehicle for
applying the Bill of Rights to states
• Gitlow v. New York
• Palko v. Connecticut
Gitlow v. New York
• A majority of the Court, for the first time,
accepted the argument that provisions of
the Bill of Rights apply to state
governments
• Court said freedom of speech and the
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 continued…
• The Court did not state what other rights
and liberties it thought were fundamental
enough to enjoy protection from state
infringement
• Left that decision to other cases
• Some Justices argue for total
incorporation
• Viewed the word “liberty” w/in the due process
clause as shorthand for “Bill of Rights”
Palko v. Connecticut
• Key case for selective incorporation
The process whereby the Supreme Court, on
a case-by-case basis (selective), applies
the Bill of Rights to the states through the
due process clause of the Fourteenth
Amendment (incorporation)
• The Court did two things
– Rejected total incorporation
– Established a standard to guide the process
of selective incorporation
Palko continued…
• The Court sais any right “found to be
implicit in the concept of ordered liberty”
and “so rooted in the traditions and the
conscience of our people as to be ranked
as fundamental” would be applied to the
states.
• GITLOW OPENED THE DOOR…PALKO
OPENED THE FLOODGATES
• Since Palko…
The Warren Court and selective
incorporation
• Engle, Mapp, Gideon, Miranda
• Most recently, the 2nd Amendment in
McDonald v. Chicago