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14 th Amendment and Selective Incorporation

14 th 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 &

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14 th Amendment and Selective Incorporation

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  1. 14th Amendment and Selective Incorporation

  2. 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

  3. 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?

  4. 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?

  5. 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…”

  6. 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)

  7. 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

  8. 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.

  9. 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.

  10. De Jonge v. Oregon(1937) 1st Amendment Freedom of Assembly • Communism – woohoo • Government – boooo • Huh?

  11. 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.

  12. 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.'

  13. Oliver (1948) 6th Amendment Right to a public trial Right to notice of accusations

  14. 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.

  15. 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."

  16. 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.”

  17. Gideon v. Wainwright (1963) 6th Amendment Right to counsel • Arrested for breaking and entering and petty larceny. • 2000 prisoners freed!

  18. Malloy v. Hogan (1964) 5th Amendment Self Incrimination • Refused to answer questions relating to his previous convictions. • Put in jail until he did.

  19. 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

  20. Pointer v. Texas (1965) 6th Amendment Confront adverse witnesses • witness moved away before trial. Transcript of testimony was used against Pointer.

  21. 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.

  22. 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.

  23. 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.

  24. 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.

  25. 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.

  26. 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)

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