PSCI 4220PSCI 4220Civil Liberties/RightsCivil Liberties/Rights

II: Incorporation of theII: Incorporation of the

Bill of RightsBill of Rights

Incorporation of the Bill of RightsIncorporation of the Bill of Rights

• Extending protections of BOR through DP clause of 14th A to States

• BOR limited only fed govt, not States

• Madison’s proposed const’al amendment to BOR (rejected)

• Barron v. Baltimore (1833) – CJ Marshall– Barron sued Baltimore for ruining his wharf in the habor.– Takings clause of the 5th A. – private property shall not be taken

for public use (eminent domain) without compensation.– But 5th A. only specifically applies to ‘takings’ by the feds.– Barron argues: state govt’s should be required to pay for

takings just like the feds.

• Do 5th A’s limitation/requirements to the federal govt also apply to state govt’s?– No.

• Importance: the BOR only applies to fed. State constitutions limit states.– “The 5th A. must be understood as restraining the power

of the general govt [and is not] applicable to state govts”

• But then everything changed…the US began a civil war between states and brought the entire issue up with regard to slavery (when the federal govt won)

• Dred Scott was decided and war erupted.

• CIVIL WAR AMENDMENTS – 13th – abolished slavery– 14th – everyone born in US is a citizen of the US AND that

state; equal protection and due process can’t be abridged– 15th – black males are enfranchised.

• Each says that Congress has power to enforce all amendments by “appropriate legislation”

• They are all designed to prevent abuse of individual liberties by state govts, especially 14th A:

• “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of US; nor shall any State deprive any person of life, liberty, or property, w/out DP of law; nor deny to any person w/in its jurisdiction the EP of the laws.”– This sounds like the 5th A. but 5th limits feds; 14th limits

states.– 14th also has equal protection.

• 14th A prohibits States from infringing on individual rights, seems contrary to Barron v. Baltimore– The Due Process clause would become the vehicle for

applying most of the BOR to the states.

• Imposing a national standard on the states was rejected by the SCT; primary purpose of the Civil War amendments was to guarantee freedoms to freed blacks.

• Majority of SupCt never favored “total incorporation”

• So which rights were incorporated to the states and which ones weren’t?

Slaughterhouse Cases (1873)

• First time any provisions of the BOR comes before the SCT.

• There was no such thing as incorporation of the BOR.

• The 14th doesn’t change the general federal system.

• But it does define “fundamental rights” (those rights protected from govt intrusion (both state and fed).– But they don’t say what is a fundamental right yet.

Selective Incorporation

• Doesn’t always mean that there is a national standard forced upon the states.– 1st A. applies to all states, yet obscenity rules allows

local community standards to be accommodated.

– States can insulate themselves from national standards by basing their rulings on rights in their state constitutions.

• And the SCT struggles with this during the last century.

• Adamson v. California (1947) – J Reed– Admiral Adamson convicted of murder in a CA court and sentenced to

death.• But the Court and prosecutor commented on the defendant’s failure to deny

evidence against him.• This is allowed in the state but precluded by the 5th A. protections against self

incrimination.

• Issue: do 5th A protections (right against self-incrimination) apply in State court through 14th A? NO

• This is the beginnings of argument that the entire BOR should be incorporated into the DP clause of the 14th and applied to all states.

– Defendant argues that 5th A protects ‘fundamental rights.’

• Also cited Palko v. Connecticut (1937): “total incorp” inappropriate; but, “selective incorp” possible

• Fundamental rights could be selectively incorped, but clearly not all rights and not this particular right against self incrimination in 5th A

• In J Black dissent, he makes a strong argument for total incorp– But dissents don’t really matter; selective incorporation

becomes the rule.

• Eventually, though, Black’s approach becomes practical rule since nearly every right in BOR is fundamental and States cannot deny

• Duncan v. Louisiana (1968) – J White– Defendant charged with simple battery but trial judge denied

him jury trial (Louisiana provides for jury trials only in capital/grave cases).

• Issue: Is right to jury trial (6th A) fundamental, thus selectively incorped through DP of 14th A? YES

• Trial by jury (other 5th and 6th A rights) fundamental

• Race is clearly an issue in this case but the main issue is whether the state can deny citizens a right guaranteed in the BOR.– No.

• So the issue REALLY is: is the right to a jury trial a fundamental right (thus protected by BOR)?– Yes.

• “Bc we believe that trial by jury in criminal cases is fundamental to…justice, the 14th A guarantees a right to a jury trial in all criminal cases…”

• Today, the interpretation is that most EVERY right in the BOR is a fundamental right which no state can deny.– So justices have never agree with Black’s ‘total

incorporation’ doctrine, selective incorporation took every right in the BOR as a fundamental right.

• Every protected federal right in the BOR is incorporated through the DP clause of the 14th A and applies to states.– Several conservative justices recently have

argued for selective incorporation.– Rehnquist: free exercise is incorporated;

establishment clause isn’t.– Ditto Scalia.– They believe that states should have room to

maneuver in their own way on these issues.

• Today, areas in which state govts once reigned supreme (agriculture, mining, manufacturing, labor), today are controlled by feds:– Reason: Transportation systems and economic markets

have assumed a national character.– Education, health, welfare, and law enforcement mandates

cooperation between states and feds.– And income tax (16th Amendment) gave the feds hundreds

of federal grant programs.• These are carrots/sticks.

– Drinking age and highway dollars

• Basic questions of federalism today are left to Congress.– “Every time the SCT has wandered into the federalism

forest, it has gotten lost”.