Development over time
Nationalizing trend
Incorporation of the Bill of Rights
Freedom from unreasonable search and seizure (4th Amendment)
Being able to marry whom you want
Freedom to practice a religion that uses narcotics (controlled
substances)
Having equal access to public accommodations
Freedom from self-incrimination
Liberties
Rights

What: Citizens’ protection
from government

What: Citizens are protected by
the government (equal
treatment)

Question of individuals

Question of groups (racial,
gender, etc.)
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Where: Bill of Rights

Where: 14th Amendment

How: Equal protection clause

How: Due Process clause
(you not being deprived of
life, liberty or property by
government)
Liberties in the BOR

Congress shall
make no law . . .

Freedom from . . .
 Double jeopardy
 Speech
 Testify against self
 Religion
 Unreasonable search
 Assembly
and seizure
 Cruel and unusual
punishment
 Takings . . . ?
 Petition
 Press
Does the Bill of Rights limit both the state and the
federal government from infringing on your rights?
NO: Barron v. Baltimore (1833)
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Facts: Barron’s wharf was polluted by the local
government (Baltimore), Barron sues over just
compensation clause
Did the national government deprive Barron of
his property?
To which of your “citizenships” does the BOR
apply?
The Court: BOR is protection from the national
government
So, if a state deprived you of your rights, you
have a case, but that was not the case here
People were “dual” citizens: state and national
YES: 14th Amendment (1868)
“All persons . . . Are citizens of the US
and the state wherein they reside.”
 Created a single, national, citizenship

NO: Slaughterhouse Cases 1873
Slaughterhouse monopoly granted by
state of Louisiana
 Is there a national right to practice an
occupation free from a state created
monopoly?
 Court said no. The “privileges and
immunities” clause in the 14th does not
make the BOR apply to the states

YES: Gitlow v. New York (1925)
Gitlow wanted to overthrow the
government by force
 NY law made such actions illegal
 Court sided with NY: provisions of the
BOR apply to the states
 Press (1931)
 Assembly (1939)
 All are “fundamental personal liberties”

NO: Palko v. Connecticut (1937)
Palko was found guilty of a 2nd degree
murder, the state retried him to get 1st
degree
 Supreme Court said freedom from
double jeopardy was not a
“fundamental” liberty (like speech, etc.)

Since then, the Court has
incorporated . . .
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First
Fourth
Fifth (except the
Grand Jury Clause)
Sixth
Eighth (cruel and
unusual
punishments)


This is called
“selective
incorporation” of the
BOR
Implication: the
federal government
has much more to
say about how state
and local
governments
operate
Plessy v. Ferguson (1896)

“Separate but equal”
Brown v. BOE (1954)

Separate is inherently unequal
Civil Rights Act (1964)

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Title VII:
Employment (Why?)
Commerce clause!
Hiring practices
Established equal
access to public
accommodations
(restaurants, bars,
hotels, etc.)



Title IX
Education
Women’s athletics
Americans with Disabilities Act
1990

Employment protections to people with
disabilities
LGBT
1993: Military Policy (Don’t Ask; Don’t
Tell)
 1986: Bowers v. Hardwick
 1996: Romer v. Evans
 2003: Lawrence v. Texas

Affirmative Action
1969: Nixon administration initiates
 1978: Bakke
 2003: Gratz and Grutter
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