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Incorporation and the Bill of Rights


Servitude (can work only for monopolist) ... not the right to work? Field (dissenting) State citizenship ... How 'incorporation' works. Due process clause: ... – PowerPoint PPT presentation

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Title: Incorporation and the Bill of Rights

  • Incorporation and the Bill of Rights

In the beginning …
  • British Rule
  • Positive and common law rights (Bill of Rights)
  • Colonial Rule
  • Crown promised all the rights of natural
    subjects, as if born and abiding in England
  • Partially abrogated by King George III
  • Observed in practice by colonial juries
  • State constitutions (e.g., Virginia Declaration
    of Rights)
  • Constitutional Debates
  • Federalists BoR was not needed in a limited
  • Jefferson "A bill of rights is what the people
    are entitled to against every govt on earth,
    general or particular, what no just govt
    should refuse, or rest on inference.

Individual Rights in Federal Const
  • Original Text
  • Art. I, 9 limits on federal power
  • Art. I, 10 limits on state power
  • Bill of Rights
  • Demanded by state ratifying conventions
  • Written by Madison, adopted by 1st Congress
  • further declaratory and restrictive clauses
  • Civil War Amendments (13th, 14th, 15th)
  • Limit on state power
  • First broad pronouncement of individual rights

Barron v. Baltimore (1833)
  • Claim
  • Taking of property contra 5th Amd.
  • Holding
  • Bill of Rights applies only to federal govt
  • Textualism
  • the limitations on power, if expressed in
    general terms, are naturally, and, we think,
    necessarily, applicable to the govt created by
    the instrument
  • Originalism
  • Amendments were demanded as security against
    apprehended encroachments of the general govt
    not against those of local govts.

Then comes … the Civil War
  • (Southern) States demonstrated their
    dis-interest/inability to protect individual
  • Federal Govt responds with 13th, 14th, 15th
  • Designed to provide a set of federal rights that
    individuals could assert against state govts
  • A wholesale recasting of states rights and
  • A basic alteration in our federal system was
    wrought in the Recon-struction era through
    federal legislation and constitutional amendment.
    As a result of the new structure of law that
    emerged in the post Civil War era -- and
    especially of the 14th Am, which was it
    centerpiece -- the role of the Federal Gov't as a
    guarantor of basic federal rights against state
    power was clearly established. Mitchum v. Foster

The new (federal) rights
  • 13th Abolishes slavery / invol. servitude
  • 14th Section 1
  • Citizenship
  • Privileges or Immunities
  • Due Process
  • Equal Protection
  • 15th Voting
  • Bill of Rights ???

BoR as Privileges/Immunities
  • Pre-14th
  • PI clause of Art. IV
  • Protected fundamental rights ... which belong,
    as of right, to the citizens of all free
  • Not normative only non-discriminatory
  • Case law on which rights were protected by PI
  • 14th Amd. Ratification debates
  • Inconclusive as to whether drafters intended to
    federalize Art. IV PI rights

Slaughterhouse Cases (1873)
  • Claim 1 Monopoly on rendering livestock violated
    butchers 13th amendment rights
  • Invol. Servitude (can work only for monopolist)
  • efficient cause of civil war ( 13th amd) was
    african slavery
  • Prohibition on servitude was to enhance
  • Long apprenticeships serfdom etc., but not
  • Claim 2 Monopoly violates 14th amd.
  • 14th passed in response to Black Codes
  • pervading purpose … freedom of the slave race.
  • True of EP clause too.

Slaughterhouse Cases (1873)
  • Privileges or Immunities Clause
  • No State shall make or enforce any law which
    shall abridge the privileges or immunities of
    citizens of the United States
  • Miller draws distinction between PI of State
    citizens and P/I of US citizens. Why?
  • Not the purpose of the 14th to transfer the
    security protection of all civil rights from
    state to federal govt
  • Would give congress S.Ct. too much power
  • Fetter and degrade state govts
  • It would radically change the whole theory of
    the relations of the State and Federal
    governments to each other and of both to the
  • Does Miller undo the results of the Civil War

Slaughterhouse Cases (1873)
  • Privileges or Immunities Clause
  • What are the P/I of US citizens?
  • Those that owe their existence to the US
  • Right to travel transact business with federal
  • Seek its protection (petition for redress of
  • Access to seaports, commerce
  • Property ownership
  • Safety and happiness (subject to govt restraint)
  • Why not the right to work?
  • Field (dissenting)
  • State citizenship rights subsumed by US
  • 14th was a vain and idle enactment

Slaughterhouse Cases (1873)
  • Who is the greater judicial activist, Miller or
  • If the P/I clause, or the DP clause, did protect
    fundamental rights, who would define them?
  • How did the Ct. find rights under PI clause?

Saenz v. Roe (1999)
  • What is the discriminated class?
  • If non-residents, then Art. IV PI applies
  • Argument state treats new residents as if they
    were non-residents
  • But, is welfare a fundamental right (under Art 4
  • New residents
  • (Incidentally) burdens their right to change
  • Treated as 2nd class citizens of state
  • Thomas dissent
  • Majority uses P/I clause to invent new rights

Twining v. New Jersey (1908)
  • Privilege against self-incrimination
  • Recognized at common law ( most states)
  • Included in 5th amendment
  • Not among P/I of natl citizenship
  • But, is it a liberty interest, whose denial
    violates the due process clause?
  • If so, it is not because it is found in 5th
  • But because it is a fundamental precept of DP
  • Is it a fundamental principle of liberty
    justice which inheres in the very idea of free

Twining Test
How incorporation works
  • Due process clause
  • nor shall any State deprive any person of life,
    liberty, or property, without due process of law
  • Are the liberty interests in the Bill of Rights
    automatically the same as those in DP clause?
  • Or just some?
  • Or others, not found in BoR (e.g., privacy)?
  • see Chicago, Burlington v. Chicago

Also used in 5th amend nor shall private
property be taken for public use, without just
Many of the 1st 8 amends define liberty interests
Total incorp-oration
Selective incorp-oration
External values
Adamson v. California (1947)
  • Does DP clause incorporate 5th Amendment right
    against self-incrimination?
  • Reed (majority) commenting on failure to testify
    is not against Anglo-Am. legal tradition does
    not seem unfair
  • Frankfurther (concurring) most justices in last
    70 years didnt think so
  • rule whatever majority of S.Ct. seems fair
  • blanket incorporation violates federalism
  • Black (dissenting) chief object of 14th amd. (as
    a whole) was to overrule Barron total

Duncan v. Louisiana (1968)
  • Is trial by jury a liberty interest
    protected by Due Process clause?
  • We believe jury trial in criminal cases is
    funda-mental to the American scheme of justice
  • Tracks 6th amendment
  • Black (concurring)
  • Selective incorporation has resulted in most of
    the BoR being made applicable to the states
  • Would prefer that Court recognized basic function
    of P/I clause was to incorporate the entire BoR
  • keeps judges from roaming at will
  • Rejects federalism argument

Tests for Selective Incorporation
  • Sutherland (Powell v. Alabama 1932)
  • "fundamental principles of liberty and justice
    that lie at the base of all our civil and
    political institutions
  • Cardozo (Palko v. Conn 1937)
  • very essence of a scheme of ordered liberty
  • principle of justice so rooted in the traditions
    conscience of our people as to be fundamental
  • neither liberty nor justice would exist if they
    were sacrified
  • Frankfurter (Adamson v. California 1947)
  • Practices that offend canons of decency
    fairness in justice of English-speaking peoples

Selective Incorporation
  • 1st Amend
  • Free speech/press Gitlow v. New York (1925)
  • Religion Fiske v. Kansas (1927)
  • 4th Amend
  • Search seizure Mapp v. Ohio (1961)
  • 5th Amend
  • Takings clause Burlington Ry. v. Chicago (1897)
  • Double Jeopardy Palko v. Conn. (1937)
  • Self-incrimination Griffin v. California (1965)
  • 6th Amend
  • Right to counsel Powell v. Alabama (1932)

Not (yet) incorporated
  • 2nd Amendment (right to bear arms)
  • 3rd Amendment (quartering of soldiers)
  • 5th Amendment (grand jury indictment)
  • 7th Amendment (jury trial in civil cases)

Note Barron has never been overruled. States
cannot violate the rights contained in the Bill
of Rights. Rather, they violate the Due Process
clause. Thus, a claim that state action is
unconstitutional must allege a violation of the
14th Amendment.
Content of Incorporated Rights
  • Liberty rights in DP clause are not always read
    the same as parallel rights in BoR
  • E.g., trial by jury in criminal cases (6th amd)
  • Zelman v. Simmons-Harris (2002)
  • Thomas state action should be evaluated on
    different terms than similar action by Fed Govt
  • Court should strike a balance between the
    demands of the 14th Amd and federalism
  • Justice Thomas has argued for selective
    unincorporation (e.g., 8th amendment)

Parsing DP Liberty Interests
  • Review question
  • State law prohibits ownership of assault rifles
  • Methodology
  • Incorporation
  • Is ownership of assault rifles protected by 2nd
  • If so, is the 2nd am. incorporated through DP
  • Even if incorporated, does this liberty interest
    have the same scope as that in the 2nd amendment?
  • Non-incorporation
  • Is ownership of assault rifles a fundamental
    right for Due Process purposes?