PSCI 4220
Civil Liberties/Rights
II: Incorporation of the
Bill of Rights
Incorporation of the Bill of Rights
• Extending protections of BOR through DP clause of
14th A to States
• BOR limited only fed govt, not States
• Madison’s proposed const’al amendment to BOR
(rejected)
• Barron v. Baltimore (1833) – CJ Marshall
– Barron sued Baltimore for ruining his wharf in the habor.
– Takings clause of the 5th A. – private property shall not be
taken for public use (eminent domain) without compensation.
– But 5th A. only specifically applies to ‘takings’ by the feds.
– Barron argues: state govt’s should be required to pay for
takings just like the feds.
• Do 5th A’s limitation/requirements to the federal
govt also apply to state govt’s?
– No.
• Importance: the BOR only applies to fed. State
constitutions limit states.
– “The 5th A. must be understood as restraining the power
of the general govt [and is not] applicable to state
govts”
• But then everything changed…the US began a
civil war between states and brought the entire
issue up with regard to slavery (when the federal
govt won)
• Dred Scott was decided and war erupted.
• CIVIL WAR AMENDMENTS
– 13th – abolished slavery
– 14th – everyone born in US is a citizen of the US AND that
state; equal protection and due process can’t be abridged
– 15th – black males are enfranchised.
• Each says that Congress has power to enforce all
amendments by “appropriate legislation”
• They are all designed to prevent abuse of individual
liberties by state govts, especially 14th A:
• “No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of US;
nor shall any State deprive any person of life, liberty,
or property, w/out DP of law; nor deny to any person
w/in its jurisdiction the EP of the laws.”
– This sounds like the 5th A. but 5th limits feds; 14th limits
states.
– 14th also has equal protection.
• 14th A prohibits States from infringing on individual
rights, seems contrary to Barron v. Baltimore
– The Due Process clause would become the vehicle for
applying most of the BOR to the states.
• Imposing a national standard on the states was
rejected by the SCT; primary purpose of the Civil
War amendments was to guarantee freedoms to
freed blacks.
• Majority of SupCt never favored “total incorporation”
• So which rights were incorporated to the states and
which ones weren’t?
Slaughterhouse Cases (1873)
• First time any provisions of the BOR comes
before the SCT.
• There was no such thing as incorporation of
the BOR.
• The 14th doesn’t change the general federal
system.
• But it does define “fundamental rights” (those
rights protected from govt intrusion (both
state and fed).
– But they don’t say what is a fundamental right yet.
Selective Incorporation
• Doesn’t always mean that there is a national
standard forced upon the states.
– 1st A. applies to all states, yet obscenity rules allows
local community standards to be accommodated.
– States can insulate themselves from national standards
by basing their rulings on rights in their state
constitutions.
• And the SCT struggles with this during the last
century.
•
Adamson v. California (1947) – J Reed
– Admiral Adamson convicted of murder in a CA court and sentenced to
death.
• But the Court and prosecutor commented on the defendant’s failure to deny
evidence against him.
• This is allowed in the state but precluded by the 5th A. protections against self
incrimination.
•
Issue: do 5th A protections (right against self-incrimination) apply in
State court through 14th A? NO
•
This is the beginnings of argument that the entire BOR should be
incorporated into the DP clause of the 14th and applied to all states.
– Defendant argues that 5th A protects ‘fundamental rights.’
•
Also cited Palko v. Connecticut (1937): “total incorp” inappropriate; but,
“selective incorp” possible
•
Fundamental rights could be selectively incorped, but clearly not all
rights and not this particular right against self incrimination in 5th A
• In J Black dissent, he makes a strong argument for
total incorp
– But dissents don’t really matter; selective incorporation
becomes the rule.
• Eventually, though, Black’s approach becomes
practical rule since nearly every right in BOR is
fundamental and States cannot deny
• Duncan v. Louisiana (1968) – J White
– Defendant charged with simple battery but trial judge denied
him jury trial (Louisiana provides for jury trials only in
capital/grave cases).
• Issue: Is right to jury trial (6th A) fundamental, thus
selectively incorped through DP of 14th A? YES
• Trial by jury (other 5th and 6th A rights) fundamental
• Race is clearly an issue in this case but the main
issue is whether the state can deny citizens a right
guaranteed in the BOR.
– No.
• So the issue REALLY is: is the right to a jury trial
a fundamental right (thus protected by BOR)?
– Yes.
• “Bc we believe that trial by jury in criminal cases
is fundamental to…justice, the 14th A guarantees a
right to a jury trial in all criminal cases…”
• Today, the interpretation is that most EVERY right
in the BOR is a fundamental right which no state
can deny.
– So justices have never agree with Black’s ‘total
incorporation’ doctrine, selective incorporation took
every right in the BOR as a fundamental right.
• Every protected federal right in the BOR is
incorporated through the DP clause of the
14th A and applies to states.
– Several conservative justices recently have
argued for selective incorporation.
– Rehnquist: free exercise is incorporated;
establishment clause isn’t.
– Ditto Scalia.
– They believe that states should have room to
maneuver in their own way on these issues.
• Today, areas in which state govts once reigned
supreme (agriculture, mining, manufacturing, labor),
today are controlled by feds:
– Reason: Transportation systems and economic markets
have assumed a national character.
– Education, health, welfare, and law enforcement mandates
cooperation between states and feds.
– And income tax (16th Amendment) gave the feds hundreds of
federal grant programs.
• These are carrots/sticks.
– Drinking age and highway dollars
• Basic questions of federalism today are left to
Congress.
– “Every time the SCT has wandered into the federalism
forest, it has gotten lost”.