1. Constitutional rights
The 14th amendment and the Bill of Rights

2. 1. The doctrine of selective incorporation
Origins

3. The Bill of Rights (1791)
The first ten amendments to the US Constitution
It was intended to curtail the power of federal government
protect citizens’ fundamental rights and liberties
safeguard the powers of the states
Barron v Baltimore (1833):
The USSC held that the Bill of Rights did not bind states or local government
What is the Bill of Rights?
The first ten amendments to the US Constitution (ratified in 1791)
2) What was its original aim?
The BOR was intended to/supposed to curtail (= limit) the power of federal government
The US Constitution was ratified in 1788, but as you saw last year it concentrated on the structure of the federal government, and contained very few guarantees of individual rights .
However many people within the states distrusted federal government. They were afraid that it would become too powerful, and that they would lose the freedoms that they had fought for.
Therefore they insisted that 10 additional restrictions on federal power be put in place, which would
protect the fundamental rights of citizens
safeguard the powers of the states.
These became the first 10 amendments to the U.S. Constitution.
So what did these 10 amendments contain?: LOOK AT SHEET FROM LAST WEEK
The first eight amendments contain
Substantive liberties (board) : freedom of religion, freedom of speech (1st amendment), the right to bear arms (2nd am)–fundamental personal freedoms which the federal gov is not allowed to abridge or curtail (limit)
Procedural liberties / protections (board) : rules which the government is obliged to follow for example during criminal investigations and trials (found in Amendments 4,5,6,8)– things like the right to a speedy and public trial and the right to a trial by jury
What about the 9th and 10th > What do they mean?
9) Just because a right is not mentioned here, does not mean that US citizens do not have that right (not an exhaustive list of citizen’s rights) > other rights such as right to marriage been found to exist
10) The states (and the people) retain all powers which the constitution does not explicitly give to the fed gov > for example even today the development of most civil and criminal law is a state power
Did the states have to respect the Bill of Rights? No. Which case decided that?
What did the U.S. Supreme Court hold in the case Barron v Baltimore (1833)?
The USSC held that the Bill of Rights did not bind states or local government
One example is that although Article 1 forbids the federal gov from having an official religion, there were official “state” churches up to the 1820s.

4. 14th amendment (1868) Created a national citizenship
Equal protection clause
Privileges or immunities clause:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;”
Due process clause:
“nor shall any State deprive any person of life, liberty, or property, without due process of law;”
This remained the situation until the Civil War. As we saw last week, after the civil war, the balance of power between states and federal government began to change.
After the civil war, the federal government wanted to protect the right of blacks living in southern states, and that was done by limiting the powers of the states in certain areas.
We saw last week that:
The 13th amendment – abolished slavery, states could no longer choose to allow slavery
The 15th amendment – meant that black Americans could vote, at least in theory states could not choose to restrict their voting rights
The 14th amendment > also made significant changes
We saw last week
Created a national citizenship
It contained the Equal protection clause which guaranteed all people in the US equal rights at least in theory
Privileges and immunities clause > seems to say that states can’t reduce rights of US citizens
Due process clause >
What question (relating to the Bill of Rights) was raised when the 14th Amendment was passed?
Whether these two clauses meant that the whole Bill of Rights now applied to the states. Or in other words (next slide)

5. Does the 14th amendment render the BOR binding on the states?
The Slaughterhouse cases (1875)
The Privileges or Immunities clause of the 14th amendment did not render the Bill of Rights binding on the states.
Does the 14th amendment render the BOR binding on the states?
Some people argued that either through the PI clause, or the DP clause, all the provisions of the BOR now applied to the states.
5)What did the U.S. Supreme Court hold in the Slaughterhouse cases?
The Privileges and Immunities clause of the 14th amendment did not render the Bill of Rights binding on the states.
> This decision meant that the P and I clause was basically meaningless > today it is almost never cited in legal cases

6. Does the 14th amendment render the BOR binding on the states?
Gitlow v New York (1925):
The USSC incorporated the First Amendment’s freedom of speech clause into the 14th Amendment’s Due Process clause
Due process clause:
“nor shall any State deprive any person of life, liberty, or property, without due process of law;”
The court held that the Due Process clause protects certain “fundamental personal rights and liberties” of individuals against the states
However, 50 years later there was a very different decision.
5)What did the U.S. Supreme Court hold In Gitlow v New York (1925): ?
The USSC incorporated the First Amendment’s freedom of speech clause into the 14th Amendment’s Due Process clause
In other words, the court held that the FOS is one of those LIBERTIES protected by the due process clause > the states were obliged to respect it
When the 14th amendment says that states can’t remover someone’s liberty wihout DPOL, don’t just mean, put into prison, the meaning of LIBERTY is much broader, and includes the FOS.
In their judgment, the court explained their decision. The court stated that the Due Process clause protects certain “fundamental personal rights and liberties” of individuals against the states
But the court did not say which ones, and it did not say that the other protections of the Bill of Rights were now binding on the states. This ruling only incorporated the FOS.

7. Does the 14th amendment render the BOR binding on the states?
Palko v. Connecticut (1937)
Established selective incorporation
= a judicial doctrine used to establish which clauses of the Bill of Rights should be incorporated into the due process clause of the Fourteenth Amendment….
…and so protected against infringement by the states.
Finally, in Palko v Conneticut the court explained explicitly how it was going to use the due process clause of the 14th amendment to deal with the Bill of Rights and applying it to the states.
Why is Palko important?
It established the doctrine of selective incorporation – judicial doctrine used to establish which clauses of the Bill of Rights should be incorporated into the due process clause of the Fourteenth Amendment and so protected against infringement by the states

8. Palko v. Connecticut (1937)
The US Supreme Court should decide, on a case by case basis, which provisions of the Bill of Rights apply to the states.
To be incorporated, rights must be:
“implicit in the concept of ordered liberty”
“so rooted in the traditions and conscience of our people as to be ranked as fundamental”.
In Palko the USSC held that the Court should decide, on a case by case basis, which provisions of the Bill of Rights apply to the states through the Due Process clause of the 14th amendment.
What this means is that the court considers each clause of the bill of rights individually and decides if it should apply to the states.
This happens as cases arise. so you can see in the list each different freedom or protection of the BoR had been brought to the court as part of a case, the court has discussed it, and decided whether the states should be obliged to respect it.
How does the court decide?
In Palko, the court said that, to be incorporated, rights must be:
“implicit in the concept of ordered liberty” and > essential to society
“so rooted in the traditions and conscience of our people as to be ranked as fundamental”

9. 2. Selective incorporation in action

10. Selective incorporation in the twentieth century
During the 20th century, almost all the clauses of the first eight amendments were incorporated.
During the 20th century, almost all the clauses of the first eight amendments were incorporated.
Some important liberties, were incorporated in the 1930s and 40s.
the freedom of the press, was incorporated
Incorporation of the religion clauses prevented states from supporting particular religions, or discriminating on religious grounds
However, the most important period for selective incorporation was when?

11. The Warren Court
= the USSC during the period when Earl Warren was Chief Justice ( )
Incorporated most of the procedural protections of the Bill of Rights against the states
Meant that rights and protections became much more uniform across the USA…
…and that the USSC became the final judge of whether state police and courts had violated these protections
What was the Warren Court, and why is it significant in American history?
USSC during the period when Earl Warren was Chief Justice ( )
This was a time of huge social change in the US, in particular the civil rights movement. The Supreme Court reflected this change
During this period most of the procedural protections of the Bill of Rights were incorporated against the states – as well as other freedoms which had not been incorporated earlier
Look at list > read
Why is this important? What is the concrete effect of incorprating these protections?
Meant that rights and protections became uniform across the USA… > lots of states already had many of the protections which were incorporated, but now all states had to respect all of them
And even more importantly ……and that the USSC became the final judge of whether state police and courts had violated these protections.
Means that there is a mimimum standard of protection everywhere in the USA.
Defendnats have the right to an attorney > if you are charged in texas, nh or any other state
and that the USSC became the final judge of whether state police and courts had violated these protections
Most criminal law is state law, most crimes are dealt with by state police, state prosecutors and state courts
The US supreme court which interprets what these protection and freedoms mean in practical terms, day to day.
USSC who decides what the right to an attorney actually means
Today, the Warren Court is remembered and largely celebrated as a period when American’s civil rights and protections were greatly strengthened by the USSC.
However, during the twentieth century there was one major freedom which was not incorporated. Which one?

12. Strict scrutiny
Fundamental rights can only be infringed by state or federal governments in very specific situations
Laws which infringe fundamental rights are often subject to strict scrutiny by the courts (p4)
So does this mean that once a right is incorporated, the states cannot limit it at all?
No – how do the courts decide
What is this?
It is a standard that the court uses to judge if a law is constitutional
Fundamental rights can only be infringed by a law which:
is justified by a compelling government interest
is narrowly-tailored to achieve its legitimate aim
Is the least restrictive means of achieving that aim

13. 3. What about other rights?
You might remember that the 9th amendment says this list is not exhaustive

14. Substantive due process
The USSC has also held that:
the Due Process Clause of the 14th amendment and
the Due Process Clause of the 5th Amendment
protect other unenumerated but fundamental
rights.
The USSC has also decided that the word “liberty” in the 14th amendment creates something called substantive due process
This is a doctrine based on the due process clause of 14th and the due process clause of the 5th amendment (why both
14th > states
5th > federal gov
protect other unenumerated but fundamental
rights.
including the right to:
marriage (saw last week)
abortion during the first trimester
practice consensual homosexual activity in private