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 state-created 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 out-of-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