Chapter FiveSection 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 IGuarantee against establishment of religion

Guarantee of free exercise of religionGuarantee of freedom of speech

Guarantee of freedom of the pressGuarantee of freedom of assembly

Right to petition for redress of grievancesGuarantee of freedom of association

Amendment IIRight to keep and bear arms

Amendment IIIFreedom from quartering of soldiers

Amendment IVNo Unreasonable search and seizure

Requirement for a Warrant

Amendment VRight to indictment by a grand juryProtection against double jeopardyPrivilege against self-incrimination

Protection against taking of private property without due process and just compensation

Amendment VIRight to a speedy trialRight to a public trial

Right to trial by impartial juryRight to notice of accusations

Right to confront adverse witnessesRight to compulsory process (subpoenas) to

obtain witness testimonyRight to assistance of counsel

Amendment VIIRight to jury trial in civil cases

Amendment VIIIProtections against excessive bail and

excessive finesProtection against cruel and unusual

punishments

Amendment IXThe enumeration in the Constitution, of certain

rights, shall not be construed to deny or disparage others retained by the people

PROCEDURAL RIGHTSOR

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, 1833FACTS• 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, 1897FACTS

• 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.

• 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.”

Burlington Railway v Chicago, 1897

• 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 IncorporationJustice Cardozo wins, but entire court agrees on

– Automatic IncorporationAny “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, 1969FACTS• 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 IncorporationSixth 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.