14th Amendment and Selective
Incorporation
Civil Liberties versus Civil Rights
Civil Liberties deal with the Bill of Rights.
&
Civil Rights deal with laws passed by national and state legislatures.
AND……..
CIVIL LIBERTIES are protections from government
&
CIVIL RIGHTS are protections by government
Protections from Government?
Who Is or Who Was The Government?
The WHO has changed.
Prior to the Civil War the level of government to which
the Bill of Rights applied was the federal government.
The U.S. Constitution is the rules by which the federal
government operate, the Bill of Rights is the first
ten amendments to the U.S. Constitution.
What did the Civil War change?
Civil Liberties After The Civil War
Three CIVIL RIGHTS amendments
ratified after the Civil War:
13th Amendment – Abolished Slavery
14th Amendment – Redefined Civil Rights & Liberties
15th Amendment -- Provided The Vote To All Male Citizens
14th Amendment changes the fact that the Bill of Rights only
applied to the federal government.
HOW?
Due Process Clause
Both the 5th and 14th Amendment addresses “due process.”
5th Amendment – “... nor be deprived of life, liberty, or property
without due process of law; …”
14th Amendment – “… nor shall any State deprive any person
of life, liberty, or property with the due
process of law;…”
WHAT IS THE DIFFERENCE?
“… nor shall any “STATE” deprive…”
Selective Incorporation
The 14th Amendment now applies the Bill of Rights to both
the federal and state governments.
But the federal government was not in a position to do this.
The federal government (Supreme Court) implemented a
process known as
SELECTIVE INCORPORATION
The case by case application of each right found
within the Bill of Rights.
Most, but not all of the Bill of Rights is applied
to the States.
(i.e. 2nd Amendment)
Chicago, Burlington & Quincy
Railroad Co. v. City of Chicago
(1897)
Taking Clause of 5th Amendment
• Given $1 for property taken to expand road by
city of Chicago
• Just compensation does apply.
• We’ll award you a dollar
Gitlow v. New York (1925)
1st Amendment
Freedom of Speech
• Gitlow the socialist convicted of criminal
anarchy.
• Published ‘Left Wing Manifesto’
advocating unlawful overthrowing of
government.
Near v. Minnesota 1931
1st Amendment
Freedom of Press
• Jay near "anti-Catholic, anti-Semitic, anti-black and
anti-labor“ began ‘The Saturday Press’ targeting
public officials.
• Arrested under “gag law”
• SC – except in rare cases censorship, prior restraint,
unconstitutional.
De Jonge v. Oregon(1937)
1st Amendment
Freedom of Assembly
• Communism – woohoo
• Government – boooo
• Huh?
Cantwell v. Connecticut (1940)
1st Amendment
Freedom of Religion
Free Exercise Clause
• Jehovah’s Witness arrested with sons for
proselytizing in a Roman Catholic
neighborhood.
• Breach of the peace and no license to solicit.
Everson v. Board of Education (1947)
1st Amendment
Freedom of Religion
Establishment Clause
• $$$ to parents for transportation to private
religious schools.
•
"The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one
religion, aid all religions or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a
belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount,
large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state
nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against
establishment of religion by law was intended to erect 'a wall of separation between Church and State.'
Oliver (1948)
6th Amendment
Right to a public trial
Right to notice of accusations
Mapp v. Ohio (1961)
4th Amendment
Unreasonable searches and seizures
exclusionary rule
• Police forced their way into house looking for
a bombing suspect.
• Arrested her for possession of obscene
material.
• Overruled Wolf.
Robinson v. California (1962)
8th Amendment
Cruel and unusual punishment
• Arrested for being addicted to narcotics.
• In order to be guilty of a crime one must
commit an act.
• "Even one day in prison would be a cruel and
unusual punishment for the 'crime' of having a
common cold."
Edwards v. South Carolina (1963)
1st Amendment
Right to petition
• 187 African-american students marched to
State House to express their grievances
regarding civil rights.
• SC – actions were an exercise “in their most
pristine and classic form.”
Gideon v. Wainwright (1963)
6th Amendment
Right to counsel
• Arrested for breaking and entering and petty
larceny.
• 2000 prisoners freed!
Malloy v. Hogan (1964)
5th Amendment
Self Incrimination
• Refused to answer questions relating to his
previous convictions.
• Put in jail until he did.
Aguilar v. Texas (1964)
4th Amendment
warrant requirements
• Established the Aguilar-Spinelli test.
- two prong test:
1. The magistrate must be informed of the reasons to
support the conclusion that such an informant is
reliable and credible.
2. The magistrate must be informed of some of the
underlying circumstances relied on by the person
providing the information
Pointer v. Texas (1965)
6th Amendment
Confront adverse witnesses
• witness moved away before trial. Transcript of
testimony was used against Pointer.
Washington v. Texas (1967)
6th Amendment
Obtain witnesses
• Washington and another man were charged
with murder.
• Washington was not allowed to question the
other participant who had already being
convicted of the fatal shooting.
Klopfer v. North Carolina (1967)
6th Amendment
Speedy Trial
• Arrested for criminal trespassing.
• Discharged from custody but remained
subject to prosecution at the discretion of the
state.
Duncan v. Louisiana (1968)
6th Amendment
Trial by impartial jury
• Gary Duncan was accused of slapping a white
male and was arrested for simple battery.
• 60 days in prison and $150 fine with no jury.
Benton v. Maryland (1969)
5th Amendment
Double Jeopardy
overturned Palko
• Benton was tried on charges of larceny and burglary.
He was acquitted of larceny but convicted of burglary
and was sentenced to 10 years in prison.
• After conviction, the Maryland Court of Appeals ruled
in Schowgurow v. State that the portion of the
Maryland Constitution which had required all jurors to
swear their belief in the existence of God was itself
unconstitutional.
• Benton opted for a second trial.
McDonald v. Chicago (2010)
2nd Amendment
Keep and bare arms
Overturned Cruikshank (1876)
• City of Chicago had law banning handguns
and various other gun regulations.
• Cleared up Heller.
Unincorporated
• III Amendment – only incorporated to 2nd
circuit (New York, Vermont, Connecticut) in
Engblom v. Carey
• Right to grand jury (5th)
• Right to jury trial in civil cases (7th)
• Protection from excessive bail and fines (8th)