CONSTITUTIONAL LAW SPRING 2008– PROF. FISCHER
Outline for Class 27: Protection of Civil Rights and Civil
Liberties – The Application of the Bill of Rights to the
States
I.
II.
III.
Central Themes: We have previously focused mainly on the
structure of American government and the allocation of power
between the branches of the federal government and between
the federal government and the states and among the states.
Now we are starting the second part of the course, which
focuses on individual liberties and civil rights. Of course,
these issues are related. The structure of government was set
up to safeguard individual rights. Separation of powers
concerns arise over the propriety of the judiciary striking
down legislative enactments. Federalism concerns arise over
the extent to which individual rights should be applied to state
governments.
Bill of Rights BOR Amendments I-X ratified due to concerns
by some states that even though federal government was one of
limited powers, individual liberties and rights would not be
adequately protected.
Other textual provisions protecting rights include:
 Art I. § 9 “the privilege of the Writ of Habeas Corpsus shall
not be suspended, unless when in Cases of Rebellion or
Invasion, the public Safety may require it.” . . . “No Bill of
Attainder or ex post facto Law shall be passed.” [A bill of
attainder is a law that directs the punishment of a
particular person]
 Art. I § 10 “No State shall . . .pass any Bill of Attainder, ex
post factor Law, or law impairing the Obligatio of Contracts.”
 Art. III § 2 “[t]he trial of all Crimes, except in Cases of
Impeachment, shall be by jury; and such Trial shall be held in
the State where the said Crimes shall have been committed.” .
. . “Treason against the United States, shall consist only in
levying War against them, or in adhering to their Enemies,
giving them Aid and Comfort. No person shall be convicted
of Treason unless on the Testimony of two Witnesses to the
same overt Act, or on Confession in open Court .”
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IV.
V.
VI.
VII.
VIII.
a.
b.
 Art III § 3: the punishment prescribed by Congress for
Treason shall not include “Corruption of Blood, or
Forfeiture except during the Life of the Person attained.”
 Art. IV § 2: the “privileges and immunities clause” “The
Citizens of each States shall be entitled to all Privileges and
Immunities of Citizens in the several States.”
 Art. VI: “no religious Test shall ever be required as a
Qualification to any Office of Public Trust under the United
States.”
Do the rights in the BOR apply to the States, or only to the
federal government? Early case, Barron v. Mayor & City
Council of Baltimore (1833) [C p. 447] held that BOR applied
only to federal government, not state or local governments and
thus restricted only federal conduct (despite the wording of
some provisions, such as the takings clause of Amendment V,
that are not limited to the federal government). Marshall:
“The question . . . is of great importance, but not of much
difficulty.”
After Barron, many were troubled that state and local
governments could violate constitutional rights.
Privileges or Immunities Clause of XIV Amendment: No State
shall make or enforce any law whicih shall abridge the privileges
or immunities of citizens of the United States – could this be a
basis for applying the BOR to the States? The Slaughter-House
Cases (1872) [C p. 449]
Revival of the Privileges or Immunities Clause: Saenz v. Roe
(1999) [C p. 456]
Incorporation of Bill of Rights into the Due Process Clause of
the XIV Amendment.
In early 20th C, Court found that Due Process clause of XIV
Amendment protected fundamental rights from state
infringement: Chicago, Burlington & Quincy Railroad Co. v.
City of Chicago (1897) [C p. 458] (though not explicitly stated,
decision effectively establishes that Due Process Clause
incorporated takings clause in Amendment V); Twining v. New
Jersey (1908) [C p. 458] (expressly states possibility that Due
Process Clause incorporates BOR)
Debate over which liberties are safeguarded:
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 total incorporationists (e.g. Justices Black and Douglas)
(fear of too much judicial discretion). E.g. Black,
dissenting, in Adamson v. California (1937) [C p. 461]
 selective incorporationists (e.g. Justice Cardozo, who
stated that Due Process Clause incorporates “principles
of justice so rooted in the tradition and conscience of our
people as to be ranked as fundamental . . . [and] implicit
in the concept of ordered liberty.” See Palko v.
Connecticut (1937) [C p. 460] (double jeopardy clause of
Fifth Amendment incorporated by Amendment XIV);
also Justice Frankfurter, who stated that Due Process
does not incorporate practices that “offend those canons
of decency and fairness which express the notions of
justice of English-speaking peoples.” See Frankfurther,
concurring, in Adamson v. California (1947)
 Justice Thomas (who believes Establishment Clause of
Amendment I should not apply to state/local
governments: see, e.g. Zelman v. Simmons-Harris (2002)
[C p. 467]; Elk Grove v. Newdown (2004); and the new to
the a to a a new one and(federalist arguments)
c. Current status of incorporation: which rights are
incorporated? Duncan v. Louisiana (1968) [C p. 464]
First Amendment’s establishment clause, free exercise clause,
protections of speech, press, assembly, petition Gitlow v. New
York (1925) [C bp. 459]: first said First Amendment’s protection
of freedom of speech applies to states through incorporation into
the Due Process Clause of Amendment XIV; Fiske v. Kansas
(1932) [C p. 460] (first case actually striking down a state law
regulating speech as a violation of Amendment XIV)
Fourth Amendment’s protection against unreasonable search and
seizure, requirement for warrant based on probable cause,
exclusionary rule
Fifth Amendment’s prohibition of double jeopardy, protection
against self-incrimination, requirement that government pay just
compensation when takes private property for public use
Sixth Amendment’s requirements for speedy and public trial by
impartial jury with notice of the charges, the chance to confront
adverse witnesses, and have compulsory process to obtain them
that one favorable witnesses, and to have assistance of counsel if
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sentence involves possible imprisonment Powell v. Alabama
(1932) [C p. 460]
Eighth Amendment’s prohibition against excessive bail and cruel
and unusual punishment.
d. Which rights are not incorporated?
Second Amendment right to bear arms (lots of case law that not
incorporated; Court has held not incorporated in Presser v.
Illinois (1886) [C p. 466 n. 20]
Third Amendment right not to have soldiers quartered in a
person’s home (but if a case ever went to the Supreme Court, it
would likely find this right incorporated)
Fifth Amendment right to a grand jury indictment in criminal
cases (Supreme Court has held, in Hurtado v. California (1884),
that not one and one incorporated) [C p. 466 n. 23]
Seventh Amendment’s right to jury trial in civil cases (Court
ruled not incorporated in Minneapolis & St. Louis R.R. Co. v.
Bombolis (1916) [C p. 466 n. 24])
Eighth Amendment’s prohibition of excessive fines (Court never
has ruled on this)
e. Remember that, since Barron v. Mayor & City Council of
Baltimore has not been overruled, a provision of the BOR can
only be applied to the states through the due process clause of
the XIV Amendment; the BOR does not apply directly to state
or local governments.
IX. The Content of Incorporated Rights: “Jot-for-Jot”? Or Not?
If a provision in the BOR is incorporated via the Due Process
Clause, is its content identical to that applied against the federal
government?
 Williams v. Florida (1970) [C p. 468]: states can use 6-person
juries
 Apodaca v. Oregon (1972) [C p. 468]; Johnson v. Louisiana
(1972)[C p. 468]: state jury verdicts in criminal cases need not
be unanimous [though not in cases where juries are only 6
persons – Burch v. Louisiana (1979)] one and one 111 one even
though Amendment VI requires unanimous juries in federal
criminal trials
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