BILL OF RIGHTS
#1 CHAPTER 7-Fundamental Rights and the Incorporation Dispute.
Constitutional interpretation in the context of individual rishts and the fourteenth amendment.
HO 1(a) & (b) 445-459
Fourteenth amendments provides- “All persons born or naturalized in the US and subject to the jurisdiction thereof, are citizens of the US and of the state wherein they reside. No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the US; nor shall any State deprive any person of life, liberty, or property, without due process of the law; nor deny to any person within its jurisdiction the equal protection of the laws”
Originally enacted as a limitation on the powers of the federal government, the 14th amendments Due Process clause was later read to make applicable to state criminal proceedings virtually all the procedural requirements that govern the federal criminal law enforcement as a result of the Bill of Rights.
This process of “INCORPORATION” in the Bill of Rights guarantees into the 14th amen. Provides a reminder that federalism the themes bear on individual rights concerns.
During the creation of the bill of rights there turned out to be greater concern for individual rights along with states rights, thus the first 10 amendments were ratified in 1791. The Bill or rights originally applied only to the fed gov but later were interpreted to apply to states in some cases. .
Barron v Mayor and City of Baltimore (1833) (446)
F: Pl is suing state because construction left dirt at his wharf and he couldn’t do business.
I: Does the Bill of rights accord citizens of the US protection from state government acts?
H: No- Case dismissed.
R: Marshal Court-The limitations on a constitution are for the government for which it was created. If the framers had wished to include the states, they would have expressed that intention.
State constitutions are what designate limitations on state power.
Post Civil War Amendments:
After the Civil War, the 13, 14 and 15 amendments were added to the Constitution. Each gave congress the power to enforce its provisions through legislation.
14th amend. Congress enacted the Civil Rights Act of 1866 to prevent continuing oppression ex-slaves. The 14th amendment, adopted in 1868, provided a constitutional basis for the Civil Rights Act, but its terms, went much farther than the problems of slavery and race.
Slaughter House Cases (1873) 449
F: New Orleans Butchers challenging state law granting state corporation exclusive operation rights. Only means of operating was to pay state corp fees and use their facilities. State courts upheld the law. Ps appeals on the basis of (1) It creates involuntary servitude (2) it abridges the P&I of citizens (3) it denies Ps equal protection of the laws & (4) it deprives them of their property without due process of the law, all in violation of the 14th amend.
I: Does the Civil war amends. Grant US citizens broad protection from the actions of state govs?
H: No- Miller Judgment affirmed
R:
1) Interpretation of the Civ. War. Amendments must reflect their historical setting. The meaning of involuntary servitude in 13th is restricted to personal servitude and not servitude attached to property.
2) The 14th clearly distinguishes between citizens of the states and citizens of the US. Only the Privileges and Immunities of US citizens are protected by the 14th. P&I of states citizens are unaffected. The constitution does not control the power of the state governments over the rights of their own citizens except to require that a state grant equal rights to its own citizens and citizens of other states within it jurisdiction.
3) EP clause was intended primarily to prevent discriminatio
least the possibility that all nine justices meant to have endorsed with varying degrees of clarity the proposition that whatever else it did, the privileges and immunities clause at least applied to the states the constitutionally state prohibitions that had previously applied only to the federal government.— Later decision took another route to incorporating federal rights against the states via the due process clause of the 14th amendment, even though on its face this clause addresses the problems of procedure.
Due Process- Any legal proceeding enforced by public authority, sanctioned by age and custom, or newly devised, in furtherance of the general public good, which regards and preserves principles of liberty and justice must be held to be due process of law.
14th amendment contains a clause that prevents any state from depriving any person of life, liberty or property without due process of law. Scope of this clause has been unclear for years.
The answer to which principles are applied is two fold-
1) Examine the constitution itself to see if the process is in violation with any of its provisions
2) If not, then look to those settled usages and modes of proceeding existing in the common and statute law of England, before the immigration of our ancestors- 468
Selective vs. total incorporation-
Some commentators and judges argued that total incorporation i.e. the bill of rights should apply fully to state action, others argued that due process included only fundamental principles of liberty.
