Selective
Incorporation
Rationale:
1. Critical concept to know
2. Included frequently in multiple choice
section
3. Repeated again, again, and again in
Free Response section
Bill of Rights
• Added to the Constitution in part to satisfy
Anti-Federalists, 1791
• Listing of basic rights and freedoms
• Protects citizens from an abusive national
government and applied ONLY to the
national government
• First Amendment reads: “Congress shall
make no law…..”
Barron v Baltimore, 1833
John Barron, co-owned a profitable wharf in the
Baltimore harbor, 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 Court announced its decision in this case
without even hearing the arguments of the City
of Baltimore. Writing for the unanimous Court,
Chief Justice Marshall found that the limitations
on government articulated in the Fifth
Amendment were specifically intended to limit
the powers of the national government. Citing
the intent of the framers and the development of
the Bill of Rights as an exclusive check on the
government in Washington D.C., Marshall argued
that the Supreme Court had no jurisdiction in this
case since the Fifth Amendment was not
applicable to the states.
14th Amendment, 1868
Section 1 states: “No state shall make or
enforce any law which shall abridge the
privileges or immunities of citizens…nor
deprive any person….without due process of
law….nor deny…the equal protection of the
laws.”
What was the original purpose of this
amendment?
What are the two clauses in the
th
14 Amendment?
• Due Process Clause
Guarantee all citizens are given the same
procedural rights and protections
(rights of the accused)
• Equal Protection Clause
Guarantee all citizens receive protection
from abuse by the government
(civil rights, protects against discrimination)
Palko v Connecticut
• Decision: 8 votes for Connecticut, 1 vote(s) against
Legal provision: US Const. Amend 5 (double jeopardy); US
Const. Amend 14
• The Supreme Court upheld Palko's second conviction. In his
majority opinion, Cardozo formulated principles that were to
direct the Court's actions for the next three decades. He
noted that some Bill of Rights guarantees--such as freedom of
thought and speech--are fundamental, and that the
Fourteenth Amendment's due process clause absorbed these
fundamental rights and applied them to the states. Protection
against double jeopardy was not a fundamental right. Palko
died in Connecticut's electric chair on April 12, 1938.
Gitlow v New York, 1925
Free Speech case
Supreme Court ruled that a specific provision
found in the Bill of Rights was a privilege or
immunity to which all U. S. citizens were
entitled.
Therefore, the Supreme Court used the
language of the 14th Amendment to
incorporate or include free speech as a basic
right the states must also guarantee
Supreme Court Opinion
The Supreme Court stated that "For present
purposes we may and do assume that" the
rights of freedom of speech and freedom of
the press were "among the fundamental
personal rights and 'liberties' protected by the
due process clause of the Fourteenth
Amendment from impairment by the states"
Selective Incorporation
The Supreme Court using the provisions of the
14th Amendment to require the states to
guarantee Bill of Rights freedoms to citizens
The process has been piece by piece, case by
case over time.
There are still a few portions of the Bill of
Rights not incorporated.
Free Response Example
The Supreme Court ruled in Barron v Baltimore (1833)
that the Bill of Rights did not apply to the states.
Explain how the Court has interpreted the
Fourteenth Amendment to apply the Bill of rights to
the states. In your answer, briefly discuss the Court’s
decision in one of the following cases to support
your explanation.
Gitlow v New York (1925)
Mapp v Ohio (1961)
Gideon v Wainwright (1963)
• Many scholars and observers have argued that the ratification of the
Fourteenth Amendment to the Constitution has become the single most
important act in all of United States politics.
– Identify which provision of the Fourteenth Amendment was applied in
one of the following Supreme Court cases. For the case you select,
explain the significance of the decision in United States politics.
• Brown v. Board of Education of Topeka, Kansas (1954)
• Baker v Carr (1962)
• Regents of the University of California v Bakke (1978)
– Identify which provision of the Fourteenth Amendment was applied in
one of the following Supreme Court cases. For the case you select,
explain the significance of the decision in United States politics.
• Mapp v Ohio (1961)
• Miranda v Arizona (1966)
• Gideon v Wainwright (1963)
Resources
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The Other Amendment
Incorporation Handout with cases listed
Case Study Assignment
Several lists of important cases in addition to
Incorporation list
• Videos to pique interest
• Oral arguments from Supreme Court
• Gideon’s Trumpet (Afternoon at the Movies)