Selective Incorporation

The 14th Amendment

The Constitutional Convention

• In 1787, delegates were sent from each state to Philadelphia with instructions to amend the Articles of Confederation

• VA governor, Edmund Randolph introduced James Madison’s plan to create a federal system– It would give the federal gov’t certain enumerated

powers and reserve others to the states.

The Constitutional Convention

• The delegates did not think a Bill of Rights was necessary because the federal gov’t would only have powers granted to it by the states (a Bill of Rights would have been superfluous)

What were the Framer’s original intent in writing the Bill of Rights?

Amendments not included in Bill of Rights

• Apportionment• Congressional Pay (ratified in 1992 as 27th

amendment)

Bill of Rights only applied to Federal Gov’t

• The delegates only wanted to limited the powers of the new federal gov’t, not their state gov’ts

• Madison included an amendment that read “No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases”– Congress chose not to include this wording– 1st amendment starts out “Congress shall make no

law”

The 1st Test: Could the BOR limit State powers?

Barron v. Baltimore (1833):• John Barron co-owned a profitable wharf in the

Baltimore harbor. He sued the mayor of Baltimore for damages, claiming that when the city had diverted the flow of streams while engaging in street construction, it had created mounds of sand and earth near his wharf making the water too shallow for most vessels. The trial court awarded Barron damages of $4,500, but the appellate court reversed the ruling.

The 1st Test: Could the BOR limit States’ powers?

Barron v. Baltimore (1833):• Marshall Court establishes that the Bill of

Rights (specifically the 5th Amendment in this case - compensation) only applies to the Federal Government

• If the Framers wanted it to apply to the states, they would have worded it as such

What impact does Barron v. Baltimore have on Civil Liberties?

14th Amendment

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

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

National Citizenship

14th Amendment

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

National Citizenship

Privileges and Immunities Clause

14th Amendment

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

National Citizenship

Privileges and Immunities Clause

14th Amendment

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

National Citizenship

Privileges and Immunities ClauseDue Process Clause

14th Amendment

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

National Citizenship

Privileges and Immunities ClauseDue Process Clause

Equal Protection Clause

AND

1st Incorporation Case:Gitlow v. New York (1925)

Gitlow, a socialist, was arrested for distributing copies of a "left-wing manifesto" that called for the establishment of socialism through strikes and class action of any form. Gitlow was convicted under a state criminal anarchy law, which punished advocating the overthrow of the government by force. At his trial, Gitlow argued that since there was no resulting action flowing from the manifesto's publication, the statute penalized utterences without propensity to incitement of concrete action. The New York courts had decided that anyone who advocated the doctrine of violent revolution violated the law

Gitlow v. New York (1925)

Supreme Court decision is two-fold:1. Upheld Gitlow’s conviction under the “clear

and present danger” test established by Schenck v. US

2. Significance of case is that, for the first time, the 1st Amendment is made applicable to the states under the 14th Amendment

Incorporation?

However…Supreme Court does not apply ALL of the Bill of Rights to the states…why not?

• Some Justices thought “Liberty” was shorthand for the Bill of Rights.– The position became known as “total

incorporation”– How can you “incorporate” the 10th amendment?

• Majority of justices finally accepted the doctrine of “selective incorporation”

Key Case for Selective Incorporation

Palko v. Connecticut (1937)- Frank Palko had been charged with first-degree murder. He was convicted instead of second-degree murder and sentenced to life imprisonment. The state of Connecticut appealed and won a new trial; this time the court found Palko guilty of first-degree murder and sentenced him to death. Palko appealed, arguing that the 5th Amendment protection against double jeopardy applied to state gov’ts through the Due Process Clause of the 14th Amendment

Court’s Ruling in Palko

Upheld Palko’s second conviction

Justice Cardozo noted that some Bill of Rights guarantees (freedom of speech) are fundamental and applied to the states. Protection against double jeopardy was not a fundamental right

Impact of Palko Decision

For the next 35 years, the Court incorporated more of the Bill of Rights into the due process clause of the 14th Amendment

The Warren Court

• Almost completely incorporated the first 8 amendments

• Engel v. Vitale (ended prayer in school) and Abbington School District v. Schemp (not bible readings in public school) began disentangling state gov’ts from religious activities and laid the groundwork for the “Lemon Test”

The Warren Court• Expanded rights of suspects under the 4th,5th, and 6th

Amendments and applied them to the states– Mapp v. Ohio – exclusionary rule– Gideon v. Wainwright – right to counsel

• Forced state to retry or release thousands of inmates– Miranda v. Arizona – must be read your rights

• Between 1961 – 1969, the Court incorporated 11 provisions of the 4th, 5th, and 6th amendments– Benton v. Maryland incorporated protection against double

jeopardy• Following Warren’s retirement, the Court has incorporated

only 1 other provision

Impact of Selective Incorporation

• Federal guidelines for states concerning what type of expression must be allowed in books, magazines, and movies

• What types of anti-obscenity and ant-pornography laws can be passed and enforced

• What sorts of marches, rallies, and protests must be allowed

• How state courts and law enforcements hadle criminal law