A little more on Selective Incorporation as developed through the 14th Amendment.

A little more on Selective

Incorporation as developed through

the 14th Amendment

Selective Incorporation

• Creators of the Constitution had to formulate the structure in which states would give up power to the federal gov’t.

• What was their solution? The Bill of Rights

• What case was the first judicial determination of the application of the Bill of Rights to the states? What did it say?Barron v Baltimore 1833

Selective IncorporationBarron v Baltimore 1833

What legislation changes the decision of Barron v Baltimore?

14th Amendment: creates national citizenship and contains three clauses to limit the power of stategov’ts to interfere with the rights of US citizens 1. privilege and immunities clause 2. the due process clause 3. the equal protection clause

Selective Incorporation14th Amendment

Court first attempt to limit state power using the 14th is the Slaughterhouse Cases of 1873

Result: virtually emasculated the privileges and immunities clause

Selective Incorporation14th Amendment

Next came what major ruling?

Gitlow v New York 1925

Selective Incorporation14th Amendment

So how did we come to Selective Incorporation? Did the word “liberty” in the due process clause mean the entire Bill of Rights was to be used...Total Incorporation.

Total Incorporation does have some difficulties. Ex: meant imposing on state court systems the requirement to have a trial by jury in civil suits where the amount exceeds $20?Plus, what about the 10th Amendment...powers not delegated to the US by the Constitution, nor prohibited by the States, are reserved for the States respectively, or to the people

Selective Incorporation14th Amendment

That is how we come to Selective Incorporation

Case by case basis

Selective Incorporation

Selective Incorporation

Selective Incorporation

The Warren Court

Selective IncorporationThe Warren Court

Chief Justice Earl Warren from 1953-1969Handed down several landmark cases that almost completely incorporated the first eight amendments into the due process clause of the 14th Amendment

Selective IncorporationThe Warren Court

In Engel v Vitale 1962 and in Abbington School District v Schempp 1963These began the process of disentangling state gov’ts from religious activities and laid the foundation for the ____________ articulated by the SC in 1971

Lemon TestWarren Court also affected criminal procedure at the state level.It expanded rights of suspects under the 4th, 5th, and 6th Amendments and applied those rights to the states.Mapp v Ohio 1961 applied the ________________ rule to the states, preventing ______________ evidence from being admitted to trial.

exclusionaryillegally obtained

In Gideon v Wainwright 1963 the Court ordered what.... forcing the retry or release of thousands of inmates in state custody who had been tried without the benefit of counsel.

Selective IncorporationThe Warren Court

In Miranda v Arizona 1966 (the most sweeping of court decisions)it was held police must notify suspects of their rights prior to interrogation

Mapp, Gideon, and Miranda....

Selective IncorporationIn ConclusionSelective incorporation has profoundly altered

American federalism. Before the process started, the federal courts had little to say about the day-to-day operation of state and local gov’ts.

With the incorporation of the freedom of speech and the press came federal guidelines for states and localities concerning expression and its type.The federal gov’t tells states what sort of antiobscenity and antipornography laws they may pass and enforce, and what sort of marches, parades and rallies they must allow in public places.Whether the Chicago suburb of Skokie must allow Nazis to march through its Jewish neighborhoods- or a city in Florida may prevent the sale of albums by 2 Live Crew are now questions involving the SC’s interpretation to the First Amendment

Selective Incorporation

In Conclusion

The incorporation of the 4th, 5th, and 6th Amendments has changed the way state and local authorities enforce criminal law. Law officials must pay particular attention to the way they interrogate suspects.