Civil Liberties What is the difference between civil liberties and civil rights? Why does incorporation matter? What is selective incorporation?

Civil Rights and Liberties Civil rights=government protected rights of individuals against arbitrary or discriminatory treatment by gov’t/indiv –“freedom from”; protection burden on gov’t Civil liberties=personal guarantees and freedoms the federal government cannot take away by law or interpretation –“freedom to”; limits on power of government Liberties present complex problems, especially with give/take of freedoms for protection –Often falls to judiciary to balance competing interests

The Bill of Rights  Debate over necessity at Constitutional Convention, esp. by the Anti- Federalists  Initial unanimous defeat of Mason’s proposal; Madison’s “nauseous proposal” although main composer  Guarantees specific rights and liberties excluded by the Constitution  Intended to limit powers of national gov’t to infringe on citizenry  Bill of Rights=first 10 amendments  Ninth Amendment states other rights exist  Tenth Amendment reserves rights to states and people

14 th Amendment Incorporation  Until 20th century, Bill of Rights did not apply to states  Barron v. Baltimore (1833): SC rules national BoR limited only actions of national government  th Amendment’s due process clause raises questions.14th Amendment’s  Due process=clause that denies any government the right to deprive any person of life, liberty, or property without equal protection of the law  1897: substantive due process, where states must prove their laws were valid exercise of power over citizens  little enforcement by federal gov’t

Incorporation  Begins to apply after Gitlow v. New York (1925)  Ends sedition, that gov’t could not limit completely political expression  Case is first step in incorporation doctrine—interpretation that says due process clause requires state and local gov’ts must also guarantee  Near v. Minnesota (1931) the first case to be tried under doctrine  Not all guarantees have been incorporated through 14 th amendment  Selective incorporation of fundamental freedoms  SI: limits rights of states by protecting against ignoring/taking away FF  FF: rights defined by the Court as essential to order, liberty, justice and held to strict scrutiny  Palko v. Connecticut (1937)

Gut check Why was the 14 th amendment’s incorporation of the BoR to the states selective, rather than total? What protections are afforded to Americans by the 14 th amendment? What was the importance of Gitlow v. New York?