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43---Selective-Incorporation

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43---Selective-Incorporation Powered By Docstoc
					Selective Incorporation
  Aim: Should the Bill of Rights
 apply to the states as well as the
       federal government?
  The 5th Amendment says…
   No person shall be held to answer for a capital, or
  otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in the
    land or naval forces, or in the Militia, when in actual
   service in time of War or public danger; nor shall any
  person be subject for the same offense to be twice put
 in jeopardy of life or limb; nor shall be compelled in any
   criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process
of law; nor shall private property be taken for public use,
                 without just compensation

          So what does this mean anyway?
                  Aim: Should the Bill of Rights apply to
                     the states as well as the federal
                               government?
Key concepts – 5th Amendment
                  Grand Jury
     Double Jeopardy – “Watson Rules!”

              Self incrimination

       Due process of law – meaning?

   No taking of private property w/o proper
                 compensation


               Aim: Should the Bill of Rights apply to
                  the states as well as the federal
                            government?
         Problems I am going to
    have…therefore, they become OUR
               problems
   Abstract nature of selective incorporation
   Confusing views of the SC
   Altering applications of the doctrine

           Therefore, we start here…



                 Aim: Should the Bill of Rights apply to
                    the states as well as the federal
                              government?
Importance of the Bill Of Rights
   Foundations from the Enlightenment
   Anti-federalist POV
   States Bill of Rights
   Goal of the Bill of Rights
   Confused?



                Aim: Should the Bill of Rights apply to
                   the states as well as the federal
                             government?
     Barron v Baltimore (1833)
John Barron co-owned a profitable wharf in the
  Baltimore harbor. He sued the mayor of
  Baltimore for damages, claiming that when the
  city had diverted the flow of streams while
  engaging in street construction, it had created
  mounds of sand and earth near his wharf
  making the water too shallow for most vessels.

Constitutional Question?
Has the city of Baltimore violated the 5th
  Amendment rights of Barron ? Which clause of
  the 5th is being considered?
                 Aim: Should the Bill of Rights apply to
                    the states as well as the federal
                              government?
 The Supreme Court says…
                      NAY!

 The 5th Amendment was designed to protect
  citizens from inappropriate treatment by the
           federal gov’t, not the states
  Marshall says, “the first ten "amendments
 contain no expression indicating an intention to
apply them to the State governments. This court
             cannot so apply them”
                              Huh?
               Aim: Should the Bill of Rights apply to
                  the states as well as the federal
                            government?
          Consider now, the 14th
             Amendment..
All persons born or naturalized in the United States,
  and subject to the jurisdiction thereof, are
  citizens of the United States and of the State
  wherein they reside. 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.

           How is this different than the 5th?

                  Aim: Should the Bill of Rights apply to
                     the states as well as the federal
                               government?
              Side by side – 5 & 14
   No person shall be held to answer                All persons born or
    for a capital, or otherwise                       naturalized in the United
    infamous crime, unless on a                       States, and subject to the
    presentment or indictment of a                    jurisdiction thereof, are
    Grand Jury, except in cases arising               citizens of the United States
    in the land or naval forces, or in                and of the State wherein they
    the Militia, when in actual service               reside. No State shall make or
    in time of War or public danger;                  enforce any law which shall
    nor shall any person be subject for               abridge the privileges or
    the same offense to be twice put                  immunities of citizens of the
    in jeopardy of life or limb; nor                  United States; nor shall any
    shall be compelled in any criminal                State deprive any person of
    case to be a witness against                      life, liberty, or property,
    himself, nor be deprived of life,                 without due process of law;
    liberty, or property, without due                 nor deny to any person within
    process of law; nor shall private                 its jurisdiction the equal
    property be taken for public use,                 protection of the laws.
    without just compensation


                           Aim: Should the Bill of Rights apply to
                              the states as well as the federal
                                        government?
    Result of the 14th Amendment
   Goal – Southern compliance – successful?
   Consider Black codes, literacy tests, etc
   Extend power of national government to
    the states – SELECTIVE INCORPORATION!




                Aim: Should the Bill of Rights apply to
                   the states as well as the federal
                             government?
              So, to sum it all up
   Intention of the framers
   Barron v Baltimore (1833)
   14th Amendment – selective incorporation
    Why is this chain of events / cases so damn important?

Ans – Almost every case that comes before the court since
  the passage of the 14th Amendment almost always uses
         the 14th + another amendment as its basis

                         Case in point…

                     Aim: Should the Bill of Rights apply to
                        the states as well as the federal
                                  government?
               Gitlow v NY (1925)
Gitlow, a socialist, was arrested for distributing copies of a "left-wing
    manifesto" that called for the establishment of socialism through
    strikes and class action of any form. Gitlow was convicted under a
    state criminal anarchy law, which punished advocating the
    overthrow of the government by force. At his trial, Gitlow argued
    that since there was no resulting action flowing from the manifesto's
    publication, the statute penalized utterences without propensity to
    incitement of concrete action. The New York courts had decided
    that anyone who advocated the doctrine of violent revolution
    violated the law.

Does the New York law punishing the advocacy of overthrowing the
  government an unconstitutional violation of the free speech clause
  of the First Amendment?

                         Well, whaddya think?

                        Aim: Should the Bill of Rights apply to
                           the states as well as the federal
                                     government?
             Gitlow v NY (1925)
   Threshold issue: Does the First Amendment apply to the
    states? Yes, by virtue of the liberty protected by due
    process that no state shall deny (14th Amendment). On
    the merits, a state may forbid both speech and
    publication if they have a tendency to result in action
    dangerous to public security, even though such
    utterances create no clear and present danger. The
    rationale of the majority has sometimes been called the
    "dangerous tendency" test.
   The legislature may decide that an entire class of speech
    is so dangerous that it should be prohibited. Those
    legislative decisions will be upheld if not unreasonable,
    and the defendant will be punished even if her speech
    created no danger at all.
                     Aim: Should the Bill of Rights apply to
                        the states as well as the federal
                                  government?

				
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posted:9/5/2012
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