Incorporation: The Bill of Rights & the States
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Incorporation: The Bill of Rights & the States

August 26, 2019

♪ MUSIC ♪ I’m gonna talk today, our first round, about a fairly complex issue, but one that I hope you’ll find interesting. It’s the doctrine of incorporation. I’m gonna set the stage with a story; we’re gonna back in time, pre-Civil War, John Marshall is Chief Justice of the United States, and a guy in Baltimore named John Barron who has an interest, an economic interest, in a wharf. Baltimore’s a major, major port city in the United States, still is, but was of even greater significance in the 1830s. And the city of Baltimore… So the wharf is a big business, but the city of Baltimore is growing and, as often happens, interests collide. The city of Baltimore, as it’s building new buildings, has to put the dirt somewhere so they dump it in the harbor; the harbor becomes shallower; Barron and his associates discover that no longer can the ships requiring deep draft access his wharf, they’re losing business; and so they do what we do in this country: they sue. And the case goes up through the state court system and, uh, Barron’s unsuccessful, eventually files a lawsuit or appeals the high state court decision to the Supreme Court of the United States, which in those days could take jurisdiction over an appeal from a state court under Section 25 of the 1789 Judiciary Act that we talked a bit about yesterday and that Justin’s mentioned today, if a federal issue were involved but if there weren’t then the court couldn’t take jurisdiction over the appeal. So the issue in Barron vs. Baltimore, the case that the Supreme Court decided in 1833, was: did the Court have jurisdiction? And the basis of the claim, of John Barron’s claim, was Yeah, you have jurisdiction because, because these guys in Baltimore, and Baltimore’s a part of the state of Maryland, took my property, the economic advantage of my wharf, for a public purpose without paying me just compensation. It’s a violation of what we call the Takings Clause of the 5th Amendment. And sure enough, the 5th Amendment says that there shall be no taking of property without just compensation. And so Barron just wanted to get paid for the loss in value of his wharf. And the Supreme Court then had to say, “Well, you know, first of all: eventually we’d have to decide, we the court, if there’s a taking; but before we get there, we have to decide is Maryland or Baltimore or anybody who’s not the federal government liable for a violation of the 5th Amendment, even potentially? Who does the 5th Amendment apply to? It doesn’t say it just applies to the federal government, um, but maybe it does. So this is the Barron vs. Baltimore decision of 1833. And what the Supreme Court decided in that decision was that, as a historical matter, the Bill of Rights provisions had been attached to the Constitution, generated by the 1st Congress and attached to the Constitution in order to restrict the acts of the federal government. They were there because the Anti-Federalists, the people who were a bit anxious about the grant of too much power to the federal government, weren’t prepared to endorse the Constitution unless there were some immediate safeguard attached. And that took the form of the Bill of Rights. The first eight amendments to the Constitution and then the 9th Amendment that says, And this list isn’t exclusive; and then the 10th Amendment that says, And the people and states retain rights too, right? And retain powers. So, so that’s why it’s there, said John Marshall, it wasn’t there to keep the- to check the activities of the states; so we hold, Barron vs. Baltimore, that the provisions of the Bill of Rights, even though they don’t explicitly say so – 1st Amendment does, says “Congress shall pass no,” but all the rest of them – apply only to the government of the United States. So, huge decision in its consequences, because essentially from 1833 forward, the states were immunized from any sort of direct responsibility under the Bill of Rights provisions. Uh, free speech, to the federal Constitution; free speech, you’re a state, who cares. At least as far as the federal Constitution’s concerned. Infringement of free exercise of religion? You’re a state, who cares. Establishment of a church? You’re a state, who cares. You’re not subject to those provisions. Now, to be fair, the states had their own constitutions, and those constitutions included Bills of Rights, so provisions that were enforceable in state courts, but they weren’t identical to the federal provisions and the federal provisions were enforceable. And you couldn’t enforce the state provisions in federal court. So maybe you were a little more anxious about getting your state court system to enforce your state court rights against the state. Maybe you’d rather go to a federal court, but you couldn’t after Barron vs. Baltimore because the federal constitutional provisions didn’t apply and the state constitutional provisions weren’t enforceable in state courts because they didn’t raise federal issues, susceptible of adjudication on appeal under Section 25 of the 1789 Judiciary Act. Alright, so that’s the rule right up until the Civil War. Civil War comes and it’s a mess, and the war finishes and we get three new Amendments to the Constitution. We’ve had the first ten, we talked about those, the 11th is state sovereign immunity, the 12th is to clean up the mess
created by the Presidential election of 1800. And then Constitution sits quiet for a while until the Civil War. The Civil War produces three Amendments; we call them the Reconstruction Amendments or the Civil War Amendments, Amendments 13, 14, and 15. 13 abolishes slavery. 14th Amendment does a pile of stuff: it takes care of the Confederate debt issue and all sorts of things we don’t really care so much about anymore, but it also includes the Equal Protection Clause that we’re gonna talk about later, and the Due Process Clause, and I’m gonna talk about a little bit momentarily. And then the 15th Amendment which says that states can’t infringe the right to vote on account of race, which becomes important in the 1960s. Now… So that’s Barron vs. Baltimore, then we have the Civil War Amendments, which reshaped the federal structure a little bit by imposing, in the form of the 14th and 15th Amendments, direct limitations
on the states. Uh, I should have mentioned in greater detail the 14th Amendment… But I will momentarily. The 14th Amendment begins with “No state shall…” the material provisions that we’re gonna talk about in a minute. And what that did was to cause people to start rethinking this notion of the application of the Bill of Rights to the states. Nothing really happens so much in the closing years of the 19th century on this issue. There were new provisions to try to enforce; there’s a new Privileges and Immunities clause that appears and applies to states, we can- we’ll see what that means, um, slaughterhouse cases that were discussed yesterday were the result; there’s an equal protection clause, maybe we want to play with that a little bit and see what it does, again it’s directly enforceable against the states. But then we hit the 1920s and things started to change dramatically on this issue of whether the Bill of Rights applied to the states. The precipitating case, the case generally credited with starting this movement, is a case called Gitlow vs. New York. Benjamin Gitlow, a member of the New York Assembly, was a member of the Socialist party too. And in 1920, he was charged with having violated the state of New York’s Anarchy Law that had been passed after President William McKinley’s assassination in New York. The Criminal Anarchy Law prohibited, among other things, the dissemination of radical or incendiary literature, and what Gitlow had done was to publish a tract- sort of a pro-socialist tract. And in 1919, right after the end of the First World War, he was arrested for violation of the state Criminal Anarchy Law. State courts found him guilty, sent him to jail, to Ossining or Sing Sing State Prison. He sat, cooled his heels there for several years before eventually he got the federal courts to take a look at his sentence, and the case went to the Supreme Court, and the threshold question they had to answer was essentially the Barron vs. Baltimore question, because Gitlow’s claim was: This is a violation of my free speech rights. And the state of New York said, We don’t have free speech rights that go that far under the state constitution, we’ve already figured that out, and the state of New York is not responsible to you under the federal constitution’s free speech clause; that’s in the 1st Amendment, doesn’t apply to the states, citation Barron vs. Baltimore 1833, the guy with the wharf, so you’re going back to jail, Mr. Gitlow. And the Supreme Court sat down and thought about it, and eventually decided, You know, maybe we’re in a different world. Maybe that world of 1833 has been changed in some fundamental way by the Civil War or the reshuffling of the federal-state relations, and most specifically by the passage of the 14th- or the adoption of the 14th Amendment. Because the 14th Amendment says, and this is the material language, “No state shall deprive any person of life, liberty, or property without due process of law.” Now, what does liberty mean in that context? You could do an originalist’s analysis of liberty and go back to- you won’t find an answer. Alright, this is- we talked a little bit yesterday and we will again about the problems of doing originalist research. It’s not clear exactly what “liberty” was supposed to include. And what the Supreme Court did in the Gitlow case in its 1925 decision was to say, “Well, we think that liberty includes at least the right to speak freely. So, so we think that New York is subject to free speech limitations; not directly, under the 1st Amendment, but because the word ‘liberty’ in the 14th Amendment, which does apply to the states, includes a free speech component.” Now, what we came later to call this process is Incorporation. So that free speech language – free speech is a right protected under the 1st Amendment – incorporates into the Due Process Clause of the 14th Amendment. It’s a part of the liberty that you can’t be, that we can’t be, deprived of without due process of law, which had happened, potentially, in this case, so the Supreme Court can hear it. Now, this is a big shift. And of course it creates a platform for asking the question, “Well, what other rights protected under the Bill of Rights incorporate into the Due Process Clause of the 14th Amendment and so are enforceable
against the states? Let’s roll up our sleeves and see!” Now, you may want to know what happened to Mr. Gitlow. This is 1925, um, free speech claim, we can hear it; what did you do? Socialist literature?! You’re going back to jail! (laughs) So they found that his free speech rights had not been violated; they sent him back to prison where Governor Al Smith eventually pardoned him thinking that he had learned his lesson, which may have been true. But we had a new principle established: this principle of incorporation. The court wrestled with it for a little while; well, what incorporates and what doesn’t? Some Justices thought that all of the Bill of Rights provisions ought to be found to incorporate, and nothing else. Some of them thought that all of them ought to incorporate, and other things ought to incorporate as well. Other unenumerated rights. But eventually the court opted for something we call Selective Incorporation, which is: we’ll do this one at a time. We’ll apply a test to determine whether an individual right ought to incorporate, whether it’s within the Bill of Rights or outside the Bill of Rights; we’re gonna stick with the Bill of Rights for now. And the test has come to be: We’ll incorporate it if we believe that the right that’s identified is, and here I’m quoting from the 2010 case of McDonald vs. Chicago, which I’ll talk about in a minute, that’s a 2nd Amendment incorporation case: “If the right is fundamental to our nation’s particular scheme of ordered liberty and system of justice, or deeply rooted in this nation’s history and tradition.” So, free speech deeply rooted in the- I don’t know. You can see the play in the analysis, and the sort of evidence you’d want to introduce in support of the argument in favor of incorporation. With the Bill of Rights provisions, we know what they say; they’re defined in the text of the Bill of Rights, so it’s freedom of speech. Okay, is that essential? Uh, jury trial in civil cases; is that essential? And the various other protections up there. When we get outside the Constitution, the rights are a little murkier, and the definition of the right can sort of drive the result. That’s something we’ll talk about on another day. We’re gonna stick, again, with the Bill of Rights today. So, what’s been incorporated? Well, for a long time, uh, not much. The Court’s a little bit reluctant, and then the Warren Court arrived, late 1950s, and that’s the great era of criminal
protection, rights for the
criminal accused. And it’s that because the Warren Court decided to incorporate virtually
all of the Bill of Rights protections, the criminal procedure
protections, into the Due Process Clause of the 14th Amendment and enforce them against the states, who were sending most people to jail. So that’s the great age of incorporation for the criminal provisions; there’s been incorporations since then, of course as well. The most recent famous case is that case of McDonald vs. Chicago when the Supreme Court a
couple years ago decided that the 2nd Amendment right to bear arms is, to quote them, “deeply rooted in this nation’s history and tradition, and/or fundamental to our nation’s political scheme of ordered liberty,” and so incorporated into the word liberty and enforceable against the states. So since 2010 we have a 2nd Amendment right to bear arms enforceable against states if states try to limit- before that, we didn’t have a recognized, incorporated right. Every Bill of Rights provision has been found by the Supreme Court to incorporate, except for the following: quartering of troops; there’s a 2nd Circuit Amendment, uh, er, Opinion on the 3rd Amendment saying that the quartering of troops right incorporates, so a state can’t force you to house a soldier in the 2nd Circuit, which is New York and
surrounding states, but the Supreme Court hasn’t had the opportunity to consider that case; the 5th Amendment right to a grand jury indictment has not been found by the Supreme Court to have incorporated, so states don’t need to comply with that; the 7th Amendment right to a jury trial in civil cases, so you have a federal right to a jury in a civil case, but not in a state civil trial, that’s for the state to decide, that hasn’t been found to incorporate; and lastly the 8th Amendment, prohibition against excessive fines hasn’t incorporated. So… But they’re out there, and if you wanted to make Constitutional history you could pick one of those, get a state to violate it, file a lawsuit and see what you could get the Supreme Court to do about it. The last thing I’m gonna mention, it’s a concept and we’ll return to it in another conversation we talk about the Equal Protection Clause and race, is the concept of reverse incorporation. The Equal Protection Clause is found in the 14th Amendment, but it’s not in the 5th Amendment. Which is to say, the 14th Amendment applies to states, the 5th to the federal government, the states can’t deny people equal protection of the laws, but as a strict textual matter the federal government can. They can deny equal protection all over the place if they want to, because there’s nothing that says they can’t. So the Supreme Court decided to fix that problem by inventing a doctrine that we call reverse incorporation, where, in the case of Bolling vs. Sharpe, which is one of the Brown vs. Board of Education companion cases, it’s the desegregation case against the District of Columbia schools, which were run by Congress at the time. The Court said, Well, you know, there’s that- you can’t- there’s a Due Process Clause in the 5th Amendment: the federal government can’t take liberty without due process of law, so- and we think that liberty in the 5th Amendment context includes equal protection obligations, so we’re going to reverse incorporate the equal protection clause from the 14th Amendment and apply it against the federal government through the Due Process Clause of the 5th Amendment. And now the federal government is subject to the equal protection clause, and the states are subject to most of the Bill of Rights provisions by Supreme Court decision, by Supreme Court action. Um, which ought to give you a feel for, and this is what I’ll close with, not only the flexibility of the Constitution and the ambiguities of the Constitution, but the important role that the Supreme Court can and has played in structuring the way Constitutional relations actually work on the ground. Thank you. applause ♪ MUSIC ♪ Freedom 101 is made possible by generous support from Woody Young and the University of Oklahoma Alumni Association Freedom 101 is a program of the Institute for the American Constitutional Heritage at the University of Oklahoma. For more videos and podcasts visit ♪ MUSIC ♪

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  1. what about the supremacy clause??? doesn't that incorporate the bill of rights and the Constitution into every state, being that it is the supreme law of the land??? then, the 9th, being for the rights of the people??? and finally the 10th for the states rights???
    #1 is the people's rights come first, being that they are inalienable and inherent, no form of government can violate them… and only by the consent of the governed can they do anything… no authority without the allowance by The People…
    #2 is the Constitution and Bill of Rights is to restrict the forms of governments from encroaching on the rights of the people.. and to regulate interstate commerce, and international commerce and treaties…
    #3 is the states rights to govern commerce within the states, and settle disputes within the states…
    not to regulate the lives of the people, but to assure everyone equal protection of rights and property for rich and poor alike…

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