Courts and Selective Incorporation
Barron vs. Baltimore (1833)
- Takings clause of the 5th amendment only applies to nat’l gov’t UNLESS state has a takings
clause there is no restriction of eminent domain to state
-Attorney for city- Roger Taney
-never argued only dealt with briefs
14th Amendment (1868)
-Privileges & Immunities (1 state respect other state- nat’l citizenship), Due Process & Equal
Protection & SPECIFIC mention of states
Slaughter House Cases (1873)
- Bill of Rights- state of LA grants a monopoly to slaughter house to curb pollution (corruption
obvious)
-other slaughter houses argue substantive due process --right of property & privileges &
immunities
-Court prevents “p & i” to be used to extend Bill of Rights to states (kills potency of “p & i” to
states
Hurtado v. California (1874)
-Murder case- Hurtado kills friend who is loving his wife
-no grand jury but bill of indictment by judge
-Hurtado appeals to right by grand jury and Ct. denies this because it isn’t a fundamental
principle but does suggest that there might be some fundamental principles that are protections of
the state
-Question- what are fundamental principle of liberty & justice that will extend to states?
--grand jury indictment still NOT incorporated
Chicago R.R. vs. Chicago (1897)
-Takings clause of 5th amendment & “just compensation”
-Chicago will pay $13,000 to take land from people but just $1.00 to RR
-RR sue based on “just compensation”
-Ct. agrees & incorporates Bill of Rights & applies this protection to states
(New case Kelo dealt with “public use”)
- “due process clause” of the 14th amendment applies clause of the 5th amendment
-could be argued that this constitutes judicial restraint- only 1 clause of the 5th amendment
applied
-Ct. sides with City of Chicago & $1.00 is fine but set up principles (shows that Chicago lost the
battle but selective incorporation winning the war)
*note that incorporation is piecemeal, limited, slow and arduous*- no TOTAL incorporation
Gitlow vs. NY (1925)
-Gitlow writes left-wing manifesto to overthrow capitalist gov’t
-Ct. incorporates freedom of speech and freedom of press because they are fundamental
principles protected by the “due process clause” in the 14th amendment from infringement by
states
-Court DID NOT say the entire 1st amendment was incorporated
-Gitlow loses because he crossed the line but establishes the ability to incorporate speech and
press
Palko Case (1937)- Palko v. Connecticut
-Double Jeopardy and 5th amendment
-convicted without confession for 2nd degree & retried with confession for 1st degree
-Cts. said no because the right wasn’t explicit in ordered liberty?
-No only rights explicit in ordered liberty are incorporated thus not a fundamental principle to
apply to states
-demonstrates slow, arduous, piecemeal of selective incorporation