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
National Citizenship
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
National Citizenship
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
Privileges and Immunities Clause
14th Amendment
National Citizenship
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
Privileges and Immunities Clause
14th Amendment
National Citizenship
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
Due Process Clause
Privileges and Immunities Clause
14th Amendment
National Citizenship
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
Due Process Clause
Privileges and Immunities Clause
AND
Equal Protection Clause
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 antpornography 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