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Fon TsacHsn QuickReference The Issue: Are states restricted from passing laws which confict with the Bill of Rights in the U.S. Constitutioni Tbe Players: Benjamin Gitlow-Convicted by the state of New York for violating the statet law against promoting anarchy.Argued that this law violated his right to free speech guaranteed by the U.S. Constitution. Tlte Ruling: The Court ruled that language in the Fourteenth Amendment required the states to abide by the federul guarantee of the freedom of speech. ruling reversed the precedent set by Barron v. Bqltimore (L833), which held that states were not bound by the federal Bill of Rights. It established the incorytoration doctrine, which would be used for decades to slowly tie the states to many of the guarantees offered by the Bill of Rights. Significance: The Background Gitlow u. New York was selected for this book because it is the rcal beginning of the incorltoration doctrine in Supreme Court rulings. Prior to Gitlow, the Bill of fughts was considered to restrain only the national government and not the states-a doctrine that was upheld inBarron u. Baltimore (1833). In Gitlow, the Supreme Court reversed Barron u. Baltimore and in so doing 5t tied the stares to the Bill of fughts with rope provided by the Fourteenth Amendment, The Fourteenth Amendment! due process clause states that "No ' '. state (shall) deprive any person of life,liber\, or propefiy,without due process of lawi' rn Gitlow,the Court reasoned that the fr""do-'of speech is a basic liberry and, as such, is included in the scope of the Fourteenth Amendment. (For examplg prior to Gitlow, the U.s. congress could not pas_s a law limiting the freedom of speech, but a state legislarure -ight, After Gitlow, neither the federal nor state governments could p"., l"*, limiting free speech.) The significance of the incorporation doctrine is that it has allowed the Supreme court, over the years, to offer guarantees to individu alliberty that -ight not have been protected by the srares. Also important, the Supreme Court has never incorporated the entire Bill of fughts, bur has instead elected to invoke this doctrine piecemeal over many years. The incorporation doctrine is a concepr that often is difficult ro grasp -for some srudents- However, it is crucial in understanding the Court's role in protecting individual liberties in the Z}th centary. SUPREME COURT DECISIONS SncrroN r Trrn PusrrsHER The tall, slender man looked up and down the street before descending the stairs to the basement apafiment below. He knocked cwice quietly, opened the door and slipped inside. The room was dark, as usual, and the air was heevy with cigarette smoke and the smell of binding glue. The man stood for a moment just inside the door waiting for his eyes to adjust before moving. He had to walk carefally to avoid the stacks of boxes and books that covered the small area. When he got to the back office he found f the door locked so he knocked again. Finally the door flew open, revealingan aging man aLready shuffing back to his desk, his white hair aglow in the dimly lit room. "This is going to get you arrestedl' the white-haired man said, holding up the inch-thick handwritten manuscript. He offered no handshake and gave no introduction. "Dont give me thati'the slender man said,"it's good and you know itl' "I didnt say it wasnt good-I said it would get you arrestedl'The old man lit another cigarette and squinted through the smoke. "Ihave my rightsi'the slender man countered. "You have the right to suggest the violent overthrow of the governmentl" he coughed. "I have the right to freedom of speech. It's in a Little thing called the Constitutionl' "You think the Constitution is going to protect an anarchist?" the whitehaired man laughed. "The Constitution is written to protect unpopular speech, not popular speech. That was one thing they got righd'The slender man was beginning to sound preachy. 'Well, you seem to know a whole lot about the governmertthat you are wanting to overthrow, and I guess you should. Bug I publish a lot of this stu6 and maybe you ought to know more about a little thing called state law. You see, the State of Massachusetts frowns on this kind of thingi'The old man held up the smudged pages againto make his point. iil ii ii 1: li il gl a: :: "'ji]|:il Suytreme Court Decisions @ Prufrock Press . This page may be photocopied or reproduced with permission for classroom use 53 "What do you mean "I the Stqte of Massacbusetts?" the slender man asked. it doesnt maffer what the U.S. Constitution saysi'the old man 'The explained. U.S. Constitution says that'Congress shall make no law abridging the freedom of speech doesnt say a thing about the State of mean, -it Massachusetts;" "That's not right!" the slender man cried, his face reddening. "Dont worry,I'll sdll print it for you, but your name's on it and you'll be the one going to jaili' "Dont worry about me)' the slender man said, "you just print my book and I'll worry about the rest. There is no way ihey can arrest me for it,Ihave my rights guaranteed by the Constitution.I'11 fight it!" The slender man took a tightly wrapped roll of money out of his pocket and handed it to the white-haired man. The white-haired man took the money and said,"Dont say I didnt warn youi' Discussion Questions Do you think a state can pass a law that violates a right gaaranteed by the U,S. Constitutioni Explain your answer. 1". 2. Which man from the vignette above do you think is correct in his beliefsi Explain your answer. 3. Do you think the slender man should be arrestedi Why or why noti 4.Do you think that a book suggesting the overthrow of the government is protected by the First Amendmenti Why or why notl 54 Supreme Court Decisions @ Prufrock Press . This page may be photocopied or reproduced with permission for classroom use SscrroN 2: Trrs Actuar Casr Gtrl-ow v. Nrw Yonx (rgrE) Benjamin Gitlow was a Socialist who wrote the"Left Wing Manifestoj' in which he advocated the violent overthrow of the U.S. government, He was convicted of violating New Yorkt Criminal Anarchy law. He appealed the decision by making two different argumentsr First, he argued that his writing did not constitute a"clear and present danger" to public safety, the threshold having been determined in I9l9by the Supreme Court in Scbenck y. U.S, Second, he argued that his arrest violated the Fourteenth Amendment (Gitlow v. New York [L925)). Trrs Rur,rNc Gitlow's lawyers lost on the first point in which they argued that his speech should have been protected by the First Amendment. The Supreme Court ruled that the nature of Gitlow's publication was so potentially destructive that it posed an imminent threat to the country, even though his writing was nonspecific and mainly rhetorical. Thus, it upheld his conviction as constitutional. More significant, however, was the position the Court took on the meaning of the Fourteenth Amendment. In the Gitlow ruling the Court stated that the Fourteenth Amendment's due process clause ('hor shall any State deprive any person of life,liberq,, or property, without due process of law, . i') bound the individual states to adhere to portions of the First Amendment of the Constitution of the United States, This ruling overturned the previous doctrine established by Barron u. Bqkimore a cenrury before, which ruled that states were not bound by the U.S. Constitution. V.-a..<J rt I rr.o-- ,, ll't a.- --.,..-----] ,. lta,..-'_'...a- -l-i' ' a -:':':.'='"'.: 'l?.:..r1,-rr t' r!11r.r)3-oa '--:;iort1'a .. - ?r 1r-.r o 1. i'ji.'ir.tr Supreme ,.-r- -'l.iJ ."-'r::t - .-. r. ;. .a t'ta--.' r- "?r '-t t'ar rre r /, i J'-t ttrr^.r r. rrr 1 . .rl--^ ..t.tj . t.,ar-.,.:;,:: ---::-,-.:;:,:i Court Decisions O Prufrock Press . This ptge may be photocopied or reproduced with permission for classroom use 55 Trrs ArrsnMATH With Gitlow u. New Yorb, the aftermath is arguably far more important than the case itself, The notion that states must provide the protections guaranteed by the U.S. Constitution forever changed the balance of power between the states and the federal government. The concept, known as the incorytoration doctrine, started with Gitlow and tied only the freedoms of speech and press to the states. However, once that precedent was set, the court slowly began incorporating most of the other freedoms guaranteed by the Bill of fughts, as well. Civil liberties became more and more protected from states, as well as the federul.government, throughout the 20th century. Accordingly, the power of the Supreme Court to rule in cases involving civil liberties and state laws grew tremendously, as well. MarrNc Ir Cunnshlr Do you think that a state could pass a law banning handgunsl (The second amendment to the U.S. constitution guafantees the right to keep and bear arms.) I 56 Supreme Court Decisions @ Prufrock Press . This page may be photocopied or reproduced with permission for classroom use