Chapter Five
Section 1
Civil Liberties:
Incorporation
Civil Liberties versus Civil Rights
• Civil Liberties
– Negative Rights
– Bill of Rights
• Amendments 1 - 9
• Civil Rights
– Positive Rights
– Due Process, Equal Protection, and Privileges
and Immunities Clause
• 14th and 15th Amendments
• Article IV, Section 2
The Bill of Rights
• The first ten amendments to the US Constitution
– Originally twelve, but only the first ten were ratified
• Adopted December 15, 1791
• Draws influence from the Magna Carta (1215),
the English Bill of Rights (1689), and the Virginia
Declaration of Rights by George Mason (1776)
Amendment I
Guarantee against establishment of religion
Guarantee of free exercise of religion
Guarantee of freedom of speech
Guarantee of freedom of the press
Guarantee of freedom of assembly
Right to petition for redress of grievances
Guarantee of freedom of association
Amendment II
Right to keep and bear arms
Amendment III
Freedom from quartering of soldiers
Amendment IV
No Unreasonable search and seizure
Requirement for a Warrant
Amendment V
Right to indictment by a grand jury
Protection against double jeopardy
Privilege against self-incrimination
Protection against taking of private property
without due process and just compensation
Amendment VI
Right to a speedy trial
Right to a public trial
Right to trial by impartial jury
Right to notice of accusations
Right to confront adverse witnesses
Right to compulsory process (subpoenas) to
obtain witness testimony
Right to assistance of counsel
Amendment VII
Right to jury trial in civil cases
Amendment VIII
Protections against excessive bail and
excessive fines
Protection against cruel and unusual
punishments
Amendment IX
The enumeration in the Constitution, of certain
rights, shall not be construed to deny or
disparage others retained by the people
PROCEDURAL RIGHTS
OR
SUBSTANTIVE RIGHTS?
Original Interpretation
• Restrictions on Federal Government, not
State Governments
– Barron v Baltimore, 1833
– Slaughterhouse Cases, 1858
• Based on 10th Amendment
The Tenth Amendment
“The powers not delegated to the United
States by the Constitution, nor prohibited
by it to the states, are reserved to the
states respectively, or to the people.”
Barron v Baltimore, 1833
FACTS
• John Barron owned a profitable wharf in Baltimore harbor.
• The mayor of Baltimore diverted the flow of water for street
construction
• The diversion made the water too shallow for most ships near
Barron’s wharf.
FINDINGS
• The trial court awarded Barron damages of $4,500 under the Fifth
Amendment.
• The appellate court reversed.
• The Supreme Court agreed; finding that the Rights in the Constitution
are only restrictions on the federal government.
Importance:
The freedoms guaranteed by the Bill of Rights do
not restrict state governments.
The Fourteenth Amendment
All persons born or naturalized in the United States
and subject to the jurisdiction thereof, are citizens
of the United States and of the State wherein
they reside.
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 laws.
Ratification July 9, 1868
The Fifteenth Amendment
The right of citizens of the United States to vote
shall not be denied or abridged by the United
States or by any State on account of race, color,
or previous condition of servitude.
The Congress shall have power to enforce this
article by appropriate legislation.
Ratification completed on February 17, 1870
Burlington Railway v Chicago, 1897
FACTS
• The city of Chicago planned to widen a street by taking
land owned by a railroad company.
• Illinois law said that when the government took property
for public use, a jury would decide the amount to be paid
to the owner.
FINDINGS
• The jury members awarded the railroad company one
dollar in damages.
• The Supreme Court of Illinois upheld the one dollar
payment.
• The Railroad Company appealed to the U.S. Supreme
Court.
Burlington Railway v Chicago, 1897
• 5TH Amendment
– No one is to “be deprived of
life, liberty, or property, without
due process of law; nor shall
private property be taken for
public use, without just
compensation.”
• Justice Black versus Justice Cardozo
Justice Black
• Mechanical Incorporation
– Immediate and universal
application of
Amendments 1 – 8 to the
states
– Based on
• Privileges and
Immunities Clause of the
14th Amendment
• Article IV Section 2
– Broad Ruling
Justice Cardozo
• Incremental Incorporation
– Gradual and specific
application of
Amendments 1 – 8 to the
states
– Based on
• 10th Amendment
• Due Process Clause of
the 14th Amendment
• Limitations on court rulings
to specific case at hand
– Narrow Ruling
Burlington Railway v Chicago, 1897
FINDINGS
• The jury members awarded the railroad company one dollar in
damages.
• The Supreme Court of Illinois upheld the one dollar payment.
• The Railroad Company appealed to the U.S. Supreme Court.
• The Court affirmed the award as there was sufficient due
process under the Fifth and Fourteenth Amendments
Importance:
The Court used the Federal Bill of Rights to interpret the
Constitutionality of a state law, and held that states must
honor the requirement to pay owners just compensation
under the Fifth Amendment.
Selective Incorporation
Justice Cardozo wins, but entire court agrees on
– Automatic Incorporation
Any “New Rights” or “unenumerated rights” implied under
interpretations of the 9th Amendment apply to both
Federal and State governments
The Ninth Amendment
“The enumeration in the Constitution, of
certain rights, shall not be construed to
deny or disparage others retained by the
people.”
The First Amendment
“Congress shall make no law respecting an
establishment of religion, or prohibiting the
free exercise thereof; or abridging the
freedom of speech, or of the press; or the
right of the people peaceably to assemble,
and to petition the government for a
redress of grievances.”
Selective Incorporation
• First Amendment
– Establishment of Religion
• Everson v. Board of Education, 1947
– Free Exercise of Religion
• Cantwell v. Connecticut, 1940
– Freedom of Speech
• Gitlow v. New York, 1925
– Freedom of the Press
• Near v. Minnesota, 1931
– Freedom of Assembly
• DeJonge v. Oregon, 1937
– Petition for Redress of Grievances
• Edwards v. South Carolina, 1963
– Freedom of Association
• NAACP v. Alabama 1958
• Although the First Amendment lists no "right of association”, the Court
implied this from “freedoms of speech and assembly"
Gitlow v New York, 1925
•
•
•
•
•
Gitlow was publisher of a socialist newspaper.
He was convicted of under a New York law making it a crime to advocate
overthrowing the government by force.
Gitlow appealed to the Supreme Court.
The Supreme Court upheld his conviction that the First Amendment does not
apply to speech when it directly advocates the unlawful overthrowing of the
government.
The Court justified its opinion with “the First Amendment rights of freedom of
speech and freedom of the press are among the fundamental personal rights
and liberties protected by the due process clause of the Fourteenth
Amendment from impairment by the states."
Importance:
The right of freedom of the press and speech guaranteed
under the First Amendment were incorporated and applied
as restrictions on the states.
The Second Amendment
“A well regulated militia, being necessary to
the security of a free state, the right of the
people to keep and bear arms, shall not be
infringed.”
Selective Incorporation
• Second Amendment
– Right to bear arms
• Has NOT been incorporated.
– Supreme Court has purposely avoided any explicit
incorporation.
• US v Miller (1939)
– Upheld federal ban on sawed-off shotguns
– Interstate Commerce clause and not used by militia
• District of Columbia v Heller (2008)
– an individual’s “right to keep and bear arms is not
contingent upon service in any militia”
– Did NOT incorporate Second Amendment; DC is a
Federal Municipality
• McDonald v. Chicago (2010)
– Case Pending before the Supreme Court
McDonald v. Chicago, 2010
• McDonald challenges four aspects of Chicago's gun
registration law:
– Requirement that guns be registered prior to purchase
– Mandate that guns be re-registered on an annual basis, including
the payment of a fee
– Render any gun permanently illegal if registration lapses
• Appeals court held for the City of Chicago
• There is a possibility that the Court will incorporate the
Second Amendment by way of the Privileges and
Immunities Clause rather than the Due Process Clause of
the Fourteenth Amendment.
• This would be a victory for Justice Black and Mechanical
Incorporation
The Third Amendment
“No soldier shall, in time of peace be
quartered in any house, without the
consent of the owner, nor in time of war,
but in a manner to be prescribed by law.”
Selective Incorporation
• Third Amendment
– Freedom from quartering of soldiers
• Has not been explicitly incorporated, due to
lack of cases.
• Griswold v. Connecticut, 1965
– mentions this right indirectly: ". . . specific
guarantees in the Bill of Rights create implicit
rights. . . . The Third Amendment in its
prohibition against the quartering of soldiers 'in
any house' in time of peace without the consent
of the owner is another facet of the right to
privacy."
The Fourth Amendment
“The right of the people to be secure in their
persons, houses, papers, and effects,
against unreasonable searches and
seizures, shall not be violated, and no
warrants shall issue, but upon probable
cause, supported by oath or affirmation,
and particularly describing the place to be
searched, and the persons or things to be
seized.”
Selective Incorporation
• Fourth Amendment
– Unreasonable search and seizure
• Wolf v. Colorado, 1949
– Warrant requirements
• Ker v. California, 1963
– Right to Privacy
• Griswold v. Connecticut, 1965
– Implied right derived from 3rd and 4th
Amendments
The Fifth Amendment
“No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a
presentment or indictment of a grand jury, except
in cases arising in the land or naval forces, or in
the militia, when in actual service in time of war or
public danger; nor shall any person be subject for
the same offense to be twice put in jeopardy of
life or limb; nor shall be compelled in any criminal
case to be a witness against himself, nor be
deprived of life, liberty, or property, without due
process of law; nor shall private property be
taken for public use, without just compensation.”
Selective Incorporation
• Fifth Amendment
– Indictment by Grand Jury
• Has not been incorporated where there are
‘reasonable alternatives”
• Hurtado v. California, 1884
– Double Jeopardy
• Benton v Maryland, 1969
– Self-incrimination
• Malloy v. Hogan, 1964
– Taking of private property
• Burlington Railway Co. v Chicago, 1897
Benton v Maryland, 1969
FACTS
• Benton was charged with burglary (breaking and entering) and
larceny (carrying away personal property).
• Benton was convicted of burglary, but acquitted of the larceny
charges, and given 10 years.
• Prosecutors appealed the acquittal under Maryland law and won a
new trial in which Benton was found guilty of larceny.
• Benton appealed, arguing that the Fifth Amendment protection
against double jeopardy applied to state governments through the
Due Process Clause of the Fourteenth Amendment and that the
Maryland appeals law was unconstitutional.
FINDINGS
• The Court reversed the conviction and incorporated the protection
against double jeopardy as “fundamental principle of ordered liberty”.
• Overruled Palko v Connecticut
Importance:
The right against double jeopardy in the Fifth Amendment
was incorporated and applied as restrictions on the states.
The Sixth Amendment
“In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by an
impartial jury of the state and district wherein the
crime shall have been committed, which district
shall have been previously ascertained by law,
and to be informed of the nature and cause of the
accusation; to be confronted with the witnesses
against him; to have compulsory process for
obtaining witnesses in his favor, and to have the
assistance of counsel for his defense.”
Selective Incorporation
Sixth Amendment
– Speedy trial
• Klopfer v. North Carolina, 1967
– Public trial
• In re Oliver, 1948
– Trial by impartial jury
• Duncan v. Louisiana, 1968
– Unanimous jury verdict
• Burch v. Louisiana, 441 U.S. 130 (1979): implicit guarantee of
unanimous juries in criminal cases
– Notice of accusation
• Rabe v. Washington, 1972
– Confrontation of adverse witnesses
• Pointer v. Texas, 1965
– Compulsory process to obtain witness testimony
• Washington v. Texas, 1967
– Assistance of counsel
• Gideon v. Wainwright, 1963
– Miranda warning
• Miranda v. Arizona, 1966
• ACCUSED MUST BE INFORMED OF ALL RIGHTS in FIFTH AND SIXTH
AMENDMENTS
The Seventh Amendment
“In suits at common law, where the value in
controversy shall exceed twenty dollars, the
right of trial by jury shall be preserved, and
no fact tried by a jury, shall be otherwise
reexamined in any court of the United
States, than according to the rules of the
common law.”
Selective Incorporation
• Seventh Amendment
– Jury trial in civil cases
– Has not been incorporated where there are
‘reasonable’ alternatives
– Curtis v Loether, 1974
The Eighth Amendment
“Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and
unusual punishments inflicted.”
Selective Incorporation
• Eighth Amendment
– Excessive bail
• Roper v. Simmons, 2005
– Excessive fines
• Cooper Industries v. Leatherman Tool Group,
Inc., 2001
– Cruel and unusual punishment
• Robinson v. California,1962.