A little more on
Selective
Incorporation as
developed through
the 14th Amendment
Selective
Incorporation
• Creators of the Constitution had to formulate the
structure in which states would give up power to the
federal gov’t.
• What was their solution?
The Bill of Rights
• What case was the first judicial determination of the
application of the Bill of Rights to the states? What
did it say?
Barron v Baltimore 1833
Selective
Incorporation
Barron v Baltimore 1833
What legislation changes the decision of Barron v
Baltimore?
14th Amendment: creates national citizenship and
contains three clauses to limit the power of state
gov’ts to interfere with the rights of US citizens
1. privilege and immunities clause
2. the due process clause
3. the equal protection clause
Selective
Incorporation
14th Amendment
Court first attempt to limit state power using the 14th
is the Slaughterhouse Cases of 1873
Result: virtually emasculated the privileges and
immunities clause
Selective
Incorporation
14th Amendment
Next came what major ruling?
Gitlow v New York 1925
Selective
14th Incorporation
Amendment
So how did we come to Selective Incorporation? Did
the word “liberty” in the due process clause mean
the entire Bill of Rights was to be used...Total
Incorporation.
Total Incorporation does have some difficulties. Ex:
meant imposing on state court systems the
requirement to have a trial by jury in civil suits where
the amount exceeds $20?
Plus, what about the 10th Amendment...powers not
delegated to the US by the Constitution, nor prohibited by the
States, are reserved for the States respectively, or to the people
Selective
14th Incorporation
Amendment
That is how we come to Selective Incorporation
Case by case basis
Selective
Incorporation
Selective
Incorporation
Selective
Incorporation
The Warren Court
Selective
The Warren Court
Incorporation
Chief Justice Earl Warren from 1953-1969
Handed down several landmark cases that almost
completely incorporated the first eight amendments
into the due process clause of the 14th Amendment
Selective
The Warren Court
Incorporation
In Engel v Vitale 1962 and in Abbington School District v
Schempp 1963
These began the process of disentangling state gov’ts from
Lemon
Test
religious activities and laid the foundation for the
____________
articulated
the SC procedure
in 1971
Warren Court also
affectedbycriminal
at the state
level.
It expanded rights of suspects under the 4th, 5th, and 6th
Amendments and applied those rights to the states.
exclusionary
Mapp v Ohio
1961
applied
the
________________ rule to the states,
illegally obtained
preventing ______________ evidence from being admitted to trial.
In Gideon v Wainwright 1963 the Court ordered what....
forcing the retry or release of thousands of inmates in state
custody who had been tried without the benefit of counsel.
Selective
The Warren Court
Incorporation
In Miranda v Arizona 1966 (the most sweeping of court
decisions)it was held police must notify suspects of their rights
prior to interrogation
Mapp, Gideon, and Miranda....
Selective
Incorporation
In Conclusion
Selective incorporation has profoundly altered American
federalism. Before the process started, the federal courts had
little to say about the day-to-day operation of state and local
gov’ts.
With the incorporation of the freedom of speech and the press
came federal guidelines for states and localities concerning
expression and its type.
The federal gov’t tells states what sort of antiobscenity and
antipornography laws they may pass and enforce, and what
sort of marches, parades and rallies they must allow in public
places.
Whether the Chicago suburb of Skokie must allow Nazis to march through its Jewish
neighborhoods- or a city in Florida may prevent the sale of albums by 2 Live Crew are
now questions involving the SC’s interpretation to the First Amendment
Selective
Incorporation
In Conclusion
The incorporation of the 4th, 5th, and 6th Amendments has
changed the way state and local authorities enforce criminal
law. Law officials must pay particular attention to the way they
interrogate suspects.