Incorporation

1
Incorporation

• Applying the Bill of Rights to the States

Bill of Rights Institute Prairie State
College---Matteson Area Center Matteson,
IL March 19, 2009 Artemus Ward Department of
Political Science Northern Illinois
University http//polisci.niu.edu/polisci/faculty/
ward
2
What is the Bill of Rights?

• The first 10 Amendments to the U.S. Constitution.
• Passed by the first Congress in 1791.
• The Bill of Rights was added to the Constitution
  because of the fear that the federal government
  might become too powerful and encroach on
  individual rights.

3
What is Incorporation?

• Consider the 1st Amendment "Congress shall make
  no law . . . abridging the freedom of speech.
  What does this mean?
• Can state legislatures pass laws curtailing their
  citizens' free speech?
• Incorporation The process by which certain
  provisions of the Bill of Rights have been made
  applicable to the states.
• Selective Incorporation As America entered the
  20th century, the Supreme Court slowly began to
  inform state governments that they too must abide
  by most guarantees contained in the first 8
  amendments to the federal Constitution.

4
Constitutional Convention

• Before the Framers adjourned the convention, "It
  was moved and seconded to appoint a Committee to
  prepare a Bill of Rights." The motion, however,
  was defeated.

5
James Madison

• James Madison submitted to the First Congress a
  list of 17 amendments, mostly aimed at
  safeguarding personal freedoms against tyranny by
  the federal government.
• June 7, 1789 In a speech to the House, he
  suggested that "in revising the Constitution, we
  may throw into that section, which interdicts the
  abuse of certain powers of the State
  legislatures, some other provision of equal, if
  not greater importance than those already made."

6
James Madison

• Madison's proposed 14th amendment said that "no
  State shall violate the equal right of
  conscience, freedom of the press, or trial by
  jury in criminal cases." This article failed to
  garner congressional approval, so the states
  never considered it.
• Although scholars now agree that Madison viewed
  this amendment as the most significant among the
  17 he proposed, Congress's refusal to adopt it
  may have meant that the Founders never intended
  for the Bill of Rights to be applied to the
  states or local governments.

7
Barron v. Baltimore (1833)

• The first case in which the U.S. Supreme Court
  considered nationalizing the Bill of Rights.
• A wharf owner sued the city of Baltimore for
  economic loss occasioned by the citys diversion
  of streams, which lowered the water level around
  his wharves. He claimed that the city took his
  property without just compensation in violation
  of the 5th Amendment, which states . . . nor
  shall private property be taken without just
  compensation.
• Does the 5th Amendment apply to state governments?

8
Chief Justice John Marshall

• Had the framers of the Bill of Rights intended
  them to be limitations on the powers of state
  governments, they would have imitated the framers
  of the original constitution, and have expressed
  that intention.
• It is universally understood, it is part of the
  history of the day, that the great revolution
  which established the constitution of the United
  States, was not effected without immense
  opposition. . . . In compliance with a sentiment
  thus generally expressed, to quiet fears thus
  extensively entertained, amendments were proposed
  by the required majority in congress, and adopted
  by the states. These amendments contain no
  expression indicating an intention to apply them
  to the state governments. This court cannot so
  apply them.

9
1833-1866

• What resulted from Barron?
• From the 1830s until the Civil War southern
  states made speech and publication critical of
  slavery a crime.
• A number of leading Republicans viewed these
  statutes as violations of the 1st Amendment and
  other provisions of the Constitution.
• Immediately after the Civil War, Republicans
  complained that southern states were denying
  African-Americans, Republicans, and loyalist
  citizens basic rights to free speech and press,
  to due process, and to bear arms.

10
The 14th Amendment (1868)

• 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.

Privileges or Immunities Clause ? Due
Process Clause ? Equal Protection Clause ?
11
The Slaughterhouse Cases (1873)

• Does the Privileges or Immunities Clause of the
  14th Amendment incorporate or make applicable
  the Bill of Rights to the states?
• We are convinced that no such results were
  intended by the Congress which proposed these
  amendments, nor by the legislatures of the States
  which ratified them.
• Millers opinion had the effect rendering the
  Privileges or Immunities Clause virtually
  useless, a condition that has changed little
  since then. Today, the Clause remains a virtual
  non-starter in the law.

Justice Samuel Freeman Miller
12
Hurtado v. California (1884)

• Does the Due Process Clause of the 14th Amendment
  incorporate the Bill of Rights?
• The case involved a state prosecution of murder
  without a grand jury indictment.
• The 5th Amendment states No person shall be
  held to answer for a capital, or otherwise
  infamous crime, unless on a presentment or
  indictment of a Grand Jury . . . nor be deprived
  of life, liberty, or property, without due
  process of law.
• Does the 5th Amendments protection of a grand
  jury apply to state governments?
• The Court explained that unlike the 14th
  Amendment, the 5th Amendment states that persons
  are guaranteed both due process and grand jury
  protections. Since the 14th only lists due
  process, grand jury indictment is not part of
  that phrase.
• Therefore, the 14th Amendments Due Process
  Clause does NOT incorporate the 5th Amendments
  grand jury provision.

Justice Stanley Matthews
13
Chicago, Burlington Quincy Railroad v. Chicago
(1897)

• The case involved the Takings Clause of the 5th
  Amendment just as in Barron. Chicago took
  railroad property but paid the companies only 1.
• Attorneys now agued that the 14th Amendments Due
  Process Clause incorporated the 5th Amendments
  Takings Clause.
• The Court held that the Takings Clause
  constituted a vital principle of republican
  institutions without which almost all other
  rights would become worthless.
• The railroad companies won. But more importantly,
  for the first time the Court incorporated a
  clause contained in the Bill of Rights.
• Yet, in the next incorporation case, Maxwell v.
  Dow (1900), a state criminal defendant was denied
  a grand jury indictment and was tried by an
  8-person jury rather than the traditional
  12-person jury. The Court refused to incorporate
  protections listed in the 5th and 6th Amendments
  holding Trial by jury has never been affirmed to
  be a necessary requisite of due process of law.

14
Twining v. New Jersey (1908)A Standard Emerges

• The Court held It is possible that some of the
  personal rights safeguarded by the first eight
  Amendments against National action may also be
  safeguarded against state action, because a
  denial of them would be a denial of due process
  of law. If this is so, it is not because those
  rights are enumerated in the first eight
  Amendments, but because they are of such a nature
  that they are included in the conception of due
  process of law. . . . This court has always
  declined to give a comprehensive definition of
  it, and has preferred that its full meaning
  should be gradually ascertained by the process of
  inclusion and exclusion in the course of the
  decisions of cases as they arise.

Justice William H. Moody
15
Gitlow v. New York (1925)

• For present purposes we may and do assume that
  freedom of speech and 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 . . . . Reasonably limited . . . This
  freedom is an inestimable privilege in a free
  government.

Justice Edward T. Sanford
16
Palko v. Connecticut (1937)

• The Due Process Clause of the 14th Amendment
  incorporates those rights which are implicit in
  the concept of ordered liberty and which
  constitute the very essence of a scheme or
  ordered liberty.
• If the Fourteenth Amendment has absorbed them,
  the process of absorption has had its source in
  the belief that neither liberty nor justice would
  exist if they were sacrificed.

Justice Benjamin Cardozo
17
Applying the Palko Standard

• In the aftermath of Palko, the Court continued to
  selectively incorporate provisions of the Bill of
  Rights. Why? This was a compromise position among
  various members of the Court.
• Liberal Justices Hugo Black and William O.
  Douglas argued that the 14th Amendment intended
  to make all of the provisions of the Bill of
  Rights applicable to the states
• Moderate conservative Justices John Marshall
  Harlan and Potter Stewart said that the due
  process guaranteed by the 14th Amendment was
  meant neither to incorporate, nor to be limited
  to, the specific guarantees of the Bill of
  Rights.

18
Attacks from the New Right Regime

• In the 1980s, Attorney General Edwin Meese and
  others criticized incorporation as inconsistent
  with the intent of the Framers of the
  Constitution.
• Justice Clarence Thomas has explained, The text
  and history of the Establishment Clause strongly
  suggest that it is a federalism provision
  intended to prevent Congress from interfering
  with state establishments. Thus . . . it makes
  little sense to incorporate the Establishment
  Clause.
• Under this formulation, can the state of Illinois
  establish a church?

19
Today . . .

• Today, essentially all of the important
  provisions of the Bill of Rights have been
  incorporated.
• 1st Amendment Fully incorporated.
• 2nd Amendment Supreme Court rejected
  incorporation in 1876 and avoided the issue in
  D.C. v. Heller (2008).
• 3rd Amendment No Supreme Court decision 2nd
  Circuit found to be incorporated.
• 4th Amendment Fully incorporated.
• 5th Amendment Incorporated except for clause
  guaranteeing criminal prosecution only on a grand
  jury indictment.
• 6th Amendment Fully incorporated.
• 7th Amendment Not incorporated.
• 8th Amendment Incorporated with respect to the
  protection against "cruel and unusual
  punishments," but no specific Supreme Court
  ruling on the incorporation of the "excessive
  fines" and "excessive bail" protections.

20
Resurrecting the Privileges or Immunities Clause?

• In D.C. v. Heller (2008) the Court held that the
  2nd Amendment protects the right of individuals
  in Washington, DC to posses handguns in the
  home. Yet the Court did not rule on whether the
  right also applied to the states. But in his
  majority opinion, Justice Antonin Scalia hinted
  in a footnote that a more thorough examination of
  the 14th Amendment may be in order.
• Currently, there is a caseMcDonald v.
  Chicagopending in the 7th U.S. Circuit Court of
  Appeals which involves Chicagos ban on handguns.
  No matter how the 7th Circuit rules, the case
  will be appealed to the U.S. Supreme Court.
• Why might the Court take the case? Because both
  liberals and conservatives have joined forces in
  arguing that the basis for incorporating the 2nd
  Amendment is the Privileges or Immunities Clause
  of the 14th Amendment.
• Furthermore, as Scalias footnote in Heller
  suggests, some of the justices seem open to
  revisiting the incorporation controversy. For
  example, in Saenz v. Roe (1999) where the Court
  struck down a California law that gave lesser
  welfare benefits to new residents, Justice John
  Paul Stevens relied on the Clause as protecting
  the right to travel and reside in any state one
  chooses.
• In dissent, Chief Justice Rehnquist criticized
  what he saw as the Court breathing new life
  into the Clause. Justice Clarence Thomas agreed
  but said that he was open to reexamining it
  Although the majority appears to breathe new
  life into the Clause today, it fails to address
  its historical underpinnings or its place in our
  constitutional jurisprudence. Because I believe
  that the demise of the Privileges or Immunities
  Clause has contributed in no small part to the
  current disarray of our Fourteenth Amendment
  jurisprudence, I would be open to reevaluating
  its meaning in an appropriate case. Before
  invoking the Clause, however, we should endeavor
  to understand what the Framers of the Fourteenth
  Amendment thought that it meant. We should also
  consider whether the Clause should displace,
  rather than augment, portions of our equal
  protection and substantive due process
  jurisprudence. The majority's failure to consider
  these important questions raises the specter that
  the Privileges or Immunities Clause will become
  yet another convenient tool for inventing new
  rights.

21
Conclusion

• The theory of selective incorporation, in
  concept, emerged the victor but, for all
  practical purposes and with only a few
  exceptions, total nationalization, via the Due
  Process Clause, has prevailed.
• As a result, present reading of the Constitution
  now ensures that the basic civil liberties of
  citizens of the United States are largely
  protected against infringement by any government
  entityfederal, state, or local.
• Yet the recent moves toward resurrecting the
  Privileges and Immunities Clause could have
  unforeseen implications. Some liberals argue that
  invoking the Clause would have a "lift-all-boats"
  effect, strengthening free speech, and possibly
  even abortion and gay rights, at the same time
  that it bolsters the right to bear arms. On the
  other hand, conservatives see the Clause as
  potentially strengthening some rightssuch as the
  right to bear armswhile weakening others that
  they have never believed are in the Constitution
  such as a right to privacy, abortion, and gay
  rights.