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(1st 10 amendments of the constitution)
Ratified in 1791 |
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Major Question: Did the BOR apply to state gov'ts?
According to this case, no it did not.
-BOR held no significant role in early American Life |
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(1868)
- those born in the U.S. are citizens of the state they reside and the U.S.
- states cannot infringe upon the privileges and the immunities of citizens of the U.S.
- States cannot deprive you of life, liberty, or property, w/out due process of law |
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| Definition of Incorporation |
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| the process by which courts have applied portions of the BOR to all levels of gov't |
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| Incorporation in Government |
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-Various provisions are "incorporated into the 14th amendment"
-literally "to form or combine one body"
- Incorporation of BOR will be gradual and apply only to rights deemed "fundamental" |
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holding: freedom of speech and press are "fundamental liberties" protected by the Due Process clause of the 14th amendment from impairment by the states
-Significance: doesn't overturn NY law but opens door to incorporating "fundamental" rights
~~~~~link b/w freedoms in BOR & liberties under 14th amendment |
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The Scottsboro Boys
F: 9 black men in AL accused of rape; limited access to lawyer; sentenced to death in 1 day by an all-white jury
I: Do 6th Amendment rights apply against states?
H: Due Process of 14th Amendment requires court appointed counsel for indigent defendents in state criminal cases involving capital crimes |
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SELECTIVE INCORPORATION
F: convicted of murder - twice!
I: did that violate 5th amendment double jeopardy clause (can you be tryed twice for the same crime)
H: No, it did not violate the double jeopardy clause.
R: double-jeopardy protections were not "fundamental" to due Process or liberty
S: "Selective incorporation" picking and choosing fundamental rights. |
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| Incorperation of the 1st Amendment |
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- Speech: Gitlow
- Press: Near vs. Minnesota
- Exercise of religion: Cantwell
- Est. of Religion: Eversion
The 1st Amendment is applicable to the states. |
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Well regulated militia, being neccesary to the security of a free state, the right of people to bear arms
before 2008 |
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- Holding: D.C.'s firearm laws violate the 2nd Amendment
- Significance: 2nd Amendment protects an individuals rights to bear arms in home for self-defence
- Scalia: right "is not unlimited"
- 2nd Amendment still not incorperated until Mcdonald v. Chicago
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| Significance: 2nd Amendment right was fundamental and amendment was incorporated. |
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(1965)(7-2)
F: Ct. law made it a crime to use or advise as to the ise of any drug or instrument that would prevent conception
I: Is this a constitutional law?
H: No, struck down the law
R: It restriceted the right to "marital privacy". Would we allow police to search the sacred precincts of marital bedrooms for contraceptives. law doesnt pass strict scrutiny test
S: Privacy id fundamental (incorporated) reason: married couples established "pumumbra" of rights theaory |
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| BOR's specific guarentees have "punumbras" created by emotions from these guarentees that help give them life |
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| Test employed by the supreme court when individual rights are pitted against government power (fundamental rights) |
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