Warm up Look up Amendment 5 and Amendment

Warm up • Look up Amendment 5 and Amendment 14 Sect. 1. What verbiage is the same (the exact same!). Why do you think this is so?

Selective Incorporation

Selective Incorporation Ø The Supreme Court using the provisions of the 14 th Amendment to require the states to guarantee Bill of Rights freedoms to citizens Ø The process has been piece by piece, case by case over time. Ø There are still a few portions of the Bill of Rights not incorporated.

Rationale: 1. Critical concept to know 2. Included frequently in multiple 3. choice section Repeated again, and again in Free Response section

Bill of Rights • Added to the Constitution in part to satisfy Anti-Federalists, 1791 • Listing of basic rights and freedoms • Protects citizens from an abusive national government and applied ONLY to the national government • First Amendment reads: “Congress shall make no law…. . ”

Barron v Baltimore, 1833 John Barron, co-owned a profitable wharf in the Baltimore harbor, 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 earth near his wharf making the water too shallow for most vessels. The trial court awarded Barron damages of $4, 500, but the appellate court reversed the ruling.

The Court announced its decision in this case without even hearing the arguments of the City of Baltimore. Writing for the unanimous Court, Chief Justice Marshall found that the limitations on government articulated in the Fifth Amendment were specifically intended to limit the powers of the national government. Citing the intent of the framers and the development of the Bill of Rights as an exclusive check on the government in Washington D. C. , Marshall argued that the Supreme Court had no jurisdiction in this case since the Fifth Amendment was not applicable to the states.

14 th Amendment, 1868 Section 1 states: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens…nor deprive any person…. without due process of law…. nor deny…the equal protection of the laws. ” What was the original purpose of this amendment?

What are the two clauses in th the 14 Amendment? • Due Process Clause Guarantee all citizens are given the same procedural rights and protections. Also been interpreted for privacy. (rights of the accused) • Equal Protection Clause Guarantee all citizens receive protection from abuse by the government. (civil rights, protects against discrimination)

2 types of Due Process 1. Substantive Due Process-a principle allowing courts to protect certain rights deemed fundamental from government interference. 1. Ex. Right to Privacy 2. Procedural Due Process-requires government officials to follow fair procedures before depriving a person of life, liberty, or property.

Gitlow v New York, 1925 • Free Speech case • Supreme Court ruled that a specific provision found in the Bill of Rights was a privilege or immunity to which all U. S. citizens were entitled. • Therefore, the Supreme Court used the language of the 14 th Amendment to incorporate or include free speech as a basic right the states must also guarantee

Supreme Court Opinion The Supreme Court stated that "For present purposes we may and do assume that" the rights of freedom of speech and freedom of the press were "among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the states"

Palko v Connecticut (1937) Facts of the case • Frank Palko had been charged with first-degree murder. He was convicted instead of second-degree murder and sentenced to life imprisonment. The state of Connecticut appealed and won a new trial; this time the court found Palko guilty of first-degree murder and sentenced him to death. Question • Does Palko's second conviction violate the protection against double jeopardy guaranteed by the Fifth Amendment because this protection applies to the states by virtue of the Fourteenth Amendment's due process clause?

Palko v Connecticut • Decision: 8 votes for Connecticut, 1 vote(s) against Legal provision: US Const. Amend 5 (double jeopardy); US Const. Amend 14 • The Supreme Court upheld Palko's second conviction. In his majority opinion, Cardozo formulated principles that were to direct the Court's actions for the next three decades. He noted that some Bill of Rights guarantees--such as freedom of thought and speech--are fundamental, and that the Fourteenth Amendment's due process clause absorbed these fundamental rights and applied them to the states. Protection against double jeopardy was not a fundamental right. Palko died in Connecticut's electric chair on April 12, 1938. • Note: Double Jeopardy was incorporated in 1969 (Benton v. Maryland)

Comparing Due Process and Equal Protection clauses • Due process • • Mapp v Ohio (1961) - Procedural Miranda v Arizona (1966) - Procedural Gideon v Wainwright (1963) - Procedural Roe v. Wade (1973) - Substantive • Equal Protection • Brown v. Board of Education of Topeka, Kansas (1954) • Baker v Carr (1962) • Regents of the University of California v Bakke (1978)

Both Equal Protection and Due Process • Loving v. Virginia • Lawrence v. Texas • Obergefell v. Hodges– The Court noted the relationship between the liberty of the Due Process Clause and the equality of the Equal Protection Clause and determined that same-sex marriage bans violated the latter. – Concluding that the liberty and equality of same-sex couples was significantly burdened, the Court struck down same-sex marriage bans for violating both clauses, holding that same-sex couples may exercise the fundamental right to marry in all fifty states.

Free Response Example The Supreme Court ruled in Barron v Baltimore (1833) that the Bill of Rights did not apply to the states. Explain how the Court has interpreted the Fourteenth Amendment to apply the Bill of rights to the states. In your answer, briefly discuss the Court’s decision in one of the following cases to support your explanation. Gitlow v New York (1925) Mapp v Ohio (1961) Gideon v Wainwright (1963)

• Many scholars and observers have argued that the ratification of the Fourteenth Amendment to the Constitution has become the single most important act in all of United States politics. – Identify which provision of the Fourteenth Amendment was applied in one of the following Supreme Court cases. For the case you select, explain the significance of the decision in United States politics. • Brown v. Board of Education of Topeka, Kansas (1954) • Baker v Carr (1962) • Regents of the University of California v Bakke (1978) – Identify which provision of the Fourteenth Amendment was applied in one of the following Supreme Court cases. For the case you select, explain the significance of the decision in United States politics. • Mapp v Ohio (1961) • Miranda v Arizona (1966) • Gideon v Wainwright (1963)