Download The Fourteenth Amendment and The Doctrine of Incorporation

The Fourteenth Amendment and
The Doctrine of Incorporation
Richard M. Skinner
The Fourteenth Amendment
• The doctrine of incorporation states that the Due Process
Clause of the Fourteenth Amendment applies the
protections of the Bill of Rights to the states.
• Incorporation can be selective, including only those rights
deemed “fundamental,” such as those protected by the
First Amendment.
• Or it can be full, applying all of the Bill of Rights.
• The Supreme Court adopted selective incorporation in
1938, and has never explicitly moved to full incorporation.
• But after a series of decisions in the 1960s, the Supreme
Court has approached near-full incorporation, with only a
few technical provisions not applied to the states.
The Fourteenth Amendment
• After the Civil War, the governments of the
former slave states sought to restrict the
rights of the freedmen through the passage of
the “black codes.”
The Fourteenth Amendment
• As a response, the Congress passed a series of measures aimed at
protecting blacks in the South. They also authorized the stationing
of Union troops to enforce these laws, a period known as
“Reconstruction.”
• These included:
• The Civil Rights Acts of 1866 and 1875.
• The Fifteenth Amendment (1870) forbidding states from denying
the right to vote “on account of race, color or previous condition of
servitude.”
The Fourteenth Amendment
• But the most important of these was the Fourteenth
Amendment, passed by Congress in 1866, and ratified
in 1868. Southern states were required to ratify it to
rejoin the Union.
• Only Section 1 still matters today. Sections 2, 3, and 4
concern the aftermath of the Civil War: the
disqualification of Confederate officials from holding
public office, the treatment of Confederate debt, etc.
The Fourteenth Amendment
• Section 1 includes:
• The Citizenship Clause: “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.”
The Fourteenth Amendment
• The “Privileges and Immunities” Clause: “No
State shall make or enforce any law which
shall abridge the privileges or immunities of
citizens of the United States.”
The Fourteenth Amendment
• The “Due Process” Clause: “Nor shall any State
deprive any person of life, liberty, or property,
without due process of law…”
The Fourteenth Amendment
• The “Equal Protection” Clause: “Nor deny to
any person within its jurisdiction the equal
protection of the laws.”
The Citizenship Clause
• The original Constitution did not specify who was to be considered a U.S.
citizen.
• The Citizenship Clause overturned the Dred Scott decision, in which Chief
Justice Roger Taney declared that the Constitution was never intended to
treat blacks as U.S. citizens since they were considered a “subordinate and
inferior class of beings.”
• Establishes the doctrine of “birthright citizenship”: to be born in the
United States, is to be born a citizen.
• Congress can create other standards for citizenship, e.g. the children of
U.S. citizens born abroad can be considered citizens.
The “Equal Protection” Clause
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Despite the “Equal Protection” Clause, many Southern states adopted “Jim Crow”
laws segregating blacks and whites. The Supreme Court upheld these laws in
Plessy v. Ferguson (1896), which declared a doctrine of “separate but equal.”
This was overturned by Brown v. Board of Education (1954). The Court went on to
find most other racially discriminatory laws to be unconstitutional.
In Reed v. Reed (1971) and Frontiero v. Richardson (1972), the Supreme Court
applied the Equal Protection Clause to overturn sex-based discrimination, though
it has never taken as strict an approach as with race. Ruth Bader Ginsburg helped
argue both cases.
The Supreme Court has found other “suspect classifications” under the Equal
Protection Clause: national origin, religion, alienage, illegitimacy. It has also found
other classifications to be unconstitutional if they are not rationally related to
serving a legitimate state interest.
The “Privileges and Immunities”
Clause
• In the 1873 Slaughterhouse Cases, the
Supreme Court rendered the “Privileges and
Immunities” Clause essentially meaningless by
creating a doctrine of separate federal and
state citizenship.
The “Due Process” Clause
• In Barron v. Baltimore (1833), Chief Justice John Marshall declared
that the Bill of Rights applied only to the federal government, not to
the states.
• Representative John Bingham (R-OH), the “Father of the Due
Process Clause” appears to have intended that it would overturn
Barron and apply the Bill of Rights to the states.
• But the Supreme Court did not embrace this doctrine for several
decades.
Gitlow v. New York (1925)
• Benjamin Gitlow, a radical Socialist, challenged a New York law
forbidding the advocacy of the violent overthrow of the
government.
• The Supreme Court ruled against Gitlow, declaring the law to be
constitutional.
• But in the majority opinion, Justice Edward Sanford declared that
freedom of speech and press were among the fundamental rights
protected by the Due Process Clause, specifically the word “liberty.”
The Doctrine Expands
• In Fiske v. Kansas (1927), Stromberg v. California (1931), and Near v.
Minnesota (1931), the Supreme Court used the Due Process Clause to
overturn state laws that violated the freedoms of speech and the press.
• In Near, Chief Justice Charles Evans Hughes declared that these rights
were “essential personal liberty” protected by the Due Process Clause’s
“guarantee of fundamental rights of person and property.”
• In Powell v. Alabama (1932), the Supreme Court used the Due Process
Clause to defend the right to a fair trial and to counsel in capital criminal
cases.
The Doctrine Expands
• The doctrine of incorporation was applied to
the free exercise of religion in Hamilton v.
Regents of the University of California (1934)
and to the freedoms of assembly and petition
in De Jonge v. Oregon (1937).
Selective Incorporation
• In Palko v. Connecticut (1937), Justice Benjamin Cardozo declared a
doctrine of selective incorporation, that the Due Process Clause
incorporated some basic rights that were essential to “the concept of
ordered liberty.” These included those protected by the First Amendment.
• Other liberties protected by the Bill of Rights, such as the guarantee
against self-incrimination or the prohibition against double jeopardy, were
not fundamental to liberty, and so were not incorporated.
Total Incorporation
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In his dissent in Adamson v. California (1947), Justice Hugo Black went farther than
Cardozo had.
He argued that the Due Process Clause incorporated all of the Bill of Rights.
This position is known as “total incorporation.” It has never attained majority
support on the Supreme Court.
Nevertheless, Black emerged as the leading voice on the Court urging
incorporation of the procedural rights protected by the Fourth through Eighth
Amendments.
Mapp v. Ohio (1961)
• In Wolf v. Colorado (1949), the Court incorporated the
Fourth Amendment’s protection against “unreasonable
searches and seizures.”
• In Mapp v. Ohio (1961), the Court declared that states
had to obey the “exclusionary rule”: illegally obtained
evidence could not be admitted in court. The Court
later recognized a series of exceptions to this principle.
Gideon v. Wainwright (1963)
• In Gideon v. Wainwright (1963), the Supreme Court
extended the Sixth Amendment right to counsel to all
but the most trivial cases. States had to provide
counsel to those unable to afford a lawyer.
• This led directly to the creation of the public defender
system.
Malloy v. Hogan (1964)
• In Malloy v. Hogan (1964), the Supreme Court
incorporated the Fifth Amendment guarantee
against self-incrimination. Defendants in state
court could not be forced to give testimony
against themselves.
Miranda v. Arizona (1966)
• In Escobedo v. Illinois (1964), the Supreme Court
ruled that suspects undergoing interrogation
must be informed of their right to remain silent,
and to the assistance of counsel.
• Two years later, the Supreme Court expanded this
ruling in Miranda v. Arizona.
Miranda v. Arizona (1966)
• Chief Justice Earl Warren laid out the principles that became the
famous “Miranda warning.”
• Arrested criminal suspects must be told:
• They have the right to remain silent.
• Anything they say may be used against them.
• They have the right to have an attorney with them before any
questioning begins.
• If they want an attorney but cannot afford one, one will be
provided for free.
• If they do not want a lawyer and are willing to be questioned, they
may be, as long as they reached this decision “knowingly and
intelligently.”
• If suspects agree to be questioned, they can shut off interrogation
whenever they want.
Miranda v. Arizona (1966)
• Highly controversial at the time, the “Miranda
warning” has become a familiar part of the
criminal justice system.
• Subsequent decisions incorporated the rights
to a speedy trial, to trial by an “impartial” jury,
to trial by jury in criminal cases, and to
protection against double jeopardy.
The Right to Privacy
• In Griswold v. Connecticut (1965), the
Supreme Court overturned a Connecticut law
banning the use of birth control devices, or
giving information about their use.
The Right to Privacy
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Justice William Douglas declared that five amendments had “penumbras” that
created “zones of privacy.”
The First Amendment protection of the right of association.
The Third Amendment prohibition on quartering of soldiers in home.
The Fourth Amendment guarantee against unreasonable searches and seizures.
The Fifth Amendment guarantee against compulsory self-incrimination.
Hence the right to privacy was one of the unnamed rights protected by the Ninth
Amendment, and then incorporated by the Due Process Clause of the Fourteenth
Amendment.
The Right to Privacy
• In his dissent, Justice Hugo Black called the Connecticut
law “uncommonly silly” and “asinine,” but called
privacy a “broad, abstract, and ambiguous concept.”
• Even though Black claimed that “I like my privacy as
well as the next one,” he could find no specific
constitutional provision protecting such a right.
The Right to Privacy
• In 1973, in Roe v. Wade, the Supreme Court declared
that the right to privacy enunciated in Griswold made
all state bans on abortion unconstitutional.
• Justice Harry Blackmun declared that while the right to
abortion was not absolute, states could not restrict it
during the first trimester. Later in pregnancy, states
had a greater ability to impose regulations in order to
protect the “potentiality of human life.”
The Right to Privacy
• The Supreme Court has subsequently narrowed the
right to abortion declared in Roe v. Wade.
• In Planned Parenthood of Pennsylvania v. Casey (1992),
the Court abandoned the trimester system in favor of a
test of whether a law imposed an “undue burden” in
“the path of a woman seeking an abortion of a
nonviable fetus.”
The Right to Privacy
• In Bowers v. Hardwick (1986), the Supreme Court
declared that the right to privacy did not protect
consensual homosexual acts committed in
private.
• In Lawrence v. Texas (2003), the Court
overturned Bowers, and declared all “sodomy
laws” to be unconstitutional.