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Selective Incorporation: A History

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Jenifer Ann

on 12 March 2018

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Transcript of Selective Incorporation: A History

Due Process & Selective Incorporation
5th Amendment
Barron v Baltimore
John Barron sues City of Baltimore for damages after erosion from a road construction project made his wharf unnavigable

Asserted that the city violated his 5th amendment
due process
rights by 'taking private property' without just compensation in his appeal.

Supreme Court found that the Constitution and Bill of Rights were created by the people to apply to the federal government only. States are not limited by federal Bill of Rights.
Scott v Sanford
Dred Scott, an enslaved person purchased by Dr. John Emerson, sued for the right to backpay to buy his freedom. The court decided many controversial things, including not granting standing due to Scott's status as a non-citizen. Chief among the decisions as it relates to incorporation is that the courts granted substantive
due process
to the slave holder, stating that the Court does not have the right to remove property (Scott and his family) from the owners without compensation. The court cannot give compensation.
Slaughterhouse Cases (1873)
Butchers in NOLA challenge a LA law that creates a state-sanctioned monopoly in the meatpacking industry. Petitioners claim that the law deprived the tradesmen the privilege of a earning a living as they could not procure employment using the

privileges and immunities

clause. Court narrowly construes the 14th Amendment, stating that the bar on impeding privileges only applies to citizens of other states within the state in questions. Also clarified privileges and immunities to exclude equal economic protections.
Lochner v New York
State of New York set limits on the number of hours that a worker can work in a day. Challenged in court on the grounds that it impedes one's
due process
rights to protect labor (property) and ruled unconstitutional by Courts because it was an interference with the contract between labor and employment over labor, which is property.

This was a reaction to Progressive era protections, but also clarifies
substantive due process
to limit the types of activities a state may regulate (not including economic protections),
as opposed to

procedural due process
which limits the means by which a state may regulate.
Gitlow v New York
In the wake of the Red Scare and a revision of the Sedition Acts, Benjamin Gitlow was arrested for publishing socialist papers under New York State Criminal Anarchy Law. He challenged and the Court found on his behalf using the
due process clause
as the legal basis for challenge.
Palko v Connecticut
Frank Palka (funny story about that name) stole a phonograph from a record store, fled on foot, and killed two police officers with the phonography player. Connecticut lawyers went for Murder 1, but got a conviction of Murder 2. They appealed and got a new trial. Palka challenged, citing it violated the double jeopardy protection in the Fifth Amendment and
Due Process clause
in the Fourteenth Amendments. Courts agreed with him primarily because he contested on the basis of the
Due Process
and not the
Privileges and Immunities
"No person shall be... deprived of life, liberty, or property without
due process of law
All humans are entitled to fair treatment in the judicial system. Includes rights specifically spelled out in Amendments 1 and 4-8
All applies to federal government
Origin of substantive due process, where courts are considering how much one's liberty was unjustly impinged.
What kinds of things do you feel the government, either federal or state, is obligated to give you?
For starters, how about education?
Many of these
things are called
privileges and immunities. They are granted by

Congress started a list in
1866 that states could not take away. The federal government could protect your P & I because of the 14th Amendment, but uses other clauses to do so.
Privileges & Immunities
Core Rights & Liberties
More essential than P & I, our more fundamental liberties are enumerated in the Bill of Rights.

The government has legal processes it must follow to ensure our liberty before taking away any of our natural rights.
What does this mean?
When someone challenges the government for violating their due process when removing life, liberty, or property, the courts have to examine the actions in question to ensure that someone's liberties were given the appropriate ability to be heard.

The government can take life, liberty, and property away, but only when they have proven that they are doing so in a way that does damage in proportion to the issue at hand. There are tests for this, established by judicial precedent.

When the laws can hurt our natural rights, we have a substantive due process claim. When the laws are executed in a way that hurt our natural rights, we have a procedural due process.
Substance of the law vs process of the law.
Result: 5th Amendment doesn't apply to states
Result: The meaning of the 14th Amendment is very narrow, applying to only protection of citizens on the grounds of race.
Fourteenth Amendment
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.
Universal Incorporation
of all rights suggested in dissent
Equal Protection Clause
Louisiana passes the Separate Car Act, which segregates passengers by race. When Homer Plessy buys a first class ticket and denied a seat, he sues for violation of the
Equal Protection clause
Plessy v Ferguson
. Courts find that separate and equal is afforded under equal protection, as compelled racial mingling cannot be legislated.
There will be a tidal wave of cases that use selective incorporation to roll states into federal standards of due process, particularly during the Warren Court.

How did this change the method of nominating justices to the Supreme Court?
Instructional Goals
You should be able to :
Explain how the due process clause of the Fourteenth Amendment has been interpreted through judicial review to selectively protect or restrict individual liberty.

Explain the extent to which states are limited by the due process clause from infringing upon individual rights

Assess the implications of the doctrine of selective incorporation for the balance of power in the federal system
Result: Substantive Due Process rights are established for core natural rights
Results: Economic protections are eliminated from
substantive due process
The Courts established the first major case where core liberties were selectively used to incorporate state actions with federal standards.

Results: Introduced the concept of
selective incorporation
of rights under
Due Process
, while rejecting
universal or total incorporation.
During your projects you should be able to identify which rights have been incorporated through the various clauses of the Fourteenth and Fifth Amendments to both protect and restrict individual liberties before the FEDERAL and STATE governments.

Any of the
used here should be used appropriately. In your cases you should be able to identify the clauses your case is interpreting.
Substantive Due Process:

A doctrine holding that the 5th and 14th Amendments require all governmental intrusions into fundamental rights and liberties be fair and reasonable and in furtherance of a legitimate governmental interest.
Procedural Due Process
A doctrine required by the Constitution that when the state or federal government acts in such a way that denies a citizen of a life, liberty, or property interest, the person must first be given notice and the opportunity to be heard.
Famous Selective Incorporation Cases
Gideon v Wainwright
incorporated right to attorney for the poor for all cases via 6th and 14th Amendments
Mapp v Ohio
(1961) incorporated
exclusionary rule
to states in cases of unreasonable searches and seizures via 5th and 14th Amendment
Griswold v Connecticut
(1965) articulated a
found right
to protect privacy from state infringement on married couples in their access and use of contraceptives
Roe v Wade
(1973) extends privacy of a woman's right to abortion while recognizing compelling interests in life and maternal health
McDonald v Chicago
(2010) incorporated a limitation on state regulation of fire arms that are beared in self defense
Will be overturned in
Brown v Board
I (1954)
as inherently unequal under the
Equal Protection clause
holding states accountable to end segregation
de jure.

Brown v Board
II (1955) mandates implementation of the Court's decision to end segregation should be done with "all deliberate speed."

Bolling v Sharpe
reverse incorporate
as there is no
equal protection clause
in the Fifth, but can be conjoined via the
Due Process

equal protection
cases include school bussing and gay marriage cases like
Obergefell v Hodges
the law does to your fundamental
natural rights, to see if the government can do anything to limit these natural rights at all
looks at
Substantive Due Process
Procedural Due Process
the law impacts your fundamental natural rights, assuming the law can impact it at all
BUT Where did we get these ideas? They are not found in the Constitution...

They come from years and years of judicial interpretations of the Constitution... and those interpretations change our understandings of the Constitution in tiny ways with each decision handed down...
The Second Constitutional Convention: The Fourteenth Amendment
For each clause: who and what does this clause protect?
Full transcript