14th Amendment
Incorporation Doctrine
Dual Federalism
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1.
2.
Barron v. Baltimore (1833) – Bill of
Rights did not apply to the states.
Barron decision remains unchallenged until
the Civil War: The 14th Amendment
Three Key Clauses: “No State shall. . .”
Privileges and Immunities Clause
The Due Process Clause (life liberty and
property may not be deprived without…) -
Civil Liberties
3.
Equal Protection Clause – Civil Rights
Privileges and Immunities
Clause – Slaughtered
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Slaughterhouse Cases (1873) – Court
rules that the Privileges and Immunities
Clause simply protects citizens when they
move from one state to another.
Privileges and Immunities Clause of the
14th Amendment did not extend the Bill of
Rights to the states.
Incorporation Theories
Justice Hugo Black - total incorporation.
Black felt that the Fourteenth Amendment
required that the States respect all of the
enumerated rights set forth in the first eight
amendments.
 Justice Felix Frankfurter – incremental
incorporation. The federal courts should only
apply those sections of the Bill of Rights
whose abridgment would "shock the
conscience."
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Due Process Clause
Gitlow v. New York (1925)
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Ben Gitlow was convicted by the state of NY for
advocating the overthrow of the government by
force.
The Court said that freedom of speech is
“among the fundamental personal rights and
liberties protected by the due process clause of
the 14th Amendment from impairment by the
states.”
Gitlow is a landmark decision because it leads to
the Doctrine of Selective Incorporation.
Selective Incorporation Wins
Palko v. Connecticut (1937)
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The Court rejects total incorporation.
Selective Incorporation Standard:
The Court said any right “found to be
implicit in the concept of ordered liberty”
and “so rooted in the traditions and
conscience of our people as to be ranked
as fundamental” would be applied to the
states.
Incorporation Doctrine
as an Equation
14th Amendment and the Bill of Rights
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No State shall deprive you of life, liberty or
property without due process. . .
Liberty can not exist without fundamental
rights.
Free Speech is a fundamental right- liberty
can not exist if it is denied.
Therefore no state shall deny freedom of
speech, because they would be denying
liberty- contrary to the 14th Amendment.
The Warren Court
Substantive Due Process
Schenck and Abrams (1919)
US v. Dennis (1951)
Brandenburg v. Ohio (1969)
Miller v. California (1973)
New York Times v. US (1971) – Pentagon Papers
Everson v. Board of Education (1947) - Wall of Separation
Engel v. Vitale (1962)
Lemon v. Kurtzman (1971)
Procedural Due Process
Mapp v. Ohio (1961)
Update- Click here: AP Gov Civil Liberties\Exclusionary Rule.doc
Gideon v. Wainwright (1963)
Miranda v. Arizona (1965)
Furman v. Georgia (1972)
Update: Second Amendment
McDonald v. Chicago (2010)