Bill of Rights
First order of business for new government
Compromise between Federalists and AntiFederalists
James Madison author
Received hundreds of suggestions
Submitted 19 to Congress
Congress proposed 12 to states
States ratified 10 in 1791
• Ratio state pop to # rep in House (6000)
• Congressional pay
• Greater concerns than Bill of Rights
• Madison feared legislative power of the
states
• Two suggestions to Congress
– Unlimited veto power over all state laws
– Joint executive-judicial council of revision
• Access merit of state laws under review
• Limited veto over national legislation
• Benefits outweighed damage to separation
of powers
• Better safeguard of liberty than a Bill of
Rights
• When proposing amendments to Congress,
Madison asked “would the people not be
equally grateful if these ‘essential rights’
were secured against the state as well as
the national government?”
– House agreed, Senate disagreed
• Barron v Baltimore 1833
– Supreme Court ruled Bill of Rights limited only
the actions of the US Government and not those
of the states “Congress shall make no law . . .”
Selective Incorporation - p.163
• Supreme Court decided on a case-by-case
basis, which provisions of the Bill of Rights
to apply to the states through the due
process clause
Key case: Palko v. CT (1937)
• Court rejected total incorporation
• Established standard for selective
incorporation
– Rights rooted in tradition, implicit in the concept
of ordered liberty
Equal Protection Clause
of the 14th Amendment
Barron v Baltimore not challenged until the
14th amendment was ratified.
. . . No state shall make or enforce any law
which shall abridge the privileges or
immunities of citizens of the United States;
nor shall any state deprive any person of
life, liberty, or property without due process
of law; nor deny to any person within its
jurisdiction the equal protection of the law.
Due Process Clause
of the 5th & 14th Amendments
• Guarantee to individuals a variety of rights
ranging from economic liberty to criminal
procedural rights to protection from arbitrary
government action.
• 1897 government began to hold states to a
substantive due process standard whereby
states had the legal burden to prove that their
laws were a valid exercise of their power to
regulate the health, welfare, or public morals
of their citizens.
14th Amendment
• Ensures that no individual state may deprive
a person of his/her constitutional rights and
freedoms: Privileges & Immunities Clause
• Or deprive him/her of life, liberty or property
without notice and hearing: Due Process
Clause
• Or treat one person differently from another
simply because he/she is a member of a
certain class: Equal Protection Clause.