Civil Liberties Personal guarantees and freedoms that the government can not curtail Protection from the government Bill of Rights Specific rights that are constitutionally protected Places limits on government Originally did not apply to the states

Bill of Rights Framers considered it unnecessary National government only had the powers granted to it by the Constitution Ratification process difficult due to no Bill of Rights Process of approving the Constitution included the condition a Bill of Rights be added.

First order of business for new government Write the Bill of Rights-campaign promise Compromise between Federalists and Anti-Federalists James Madison author Received hundreds of suggestions Submitted 19 to Congress Congress proposed 12 to states States ratified 10 in 1791 Ratio state pop to # rep in House (6000) Congressional pay

Madison feared legislative power of the states Greater concern than the Bill of Rights Two suggestions to Congress Unlimited veto power over all state laws Joint executive-judicial council of revision Access merit of state laws under review Limited veto over national legislation Benefits outweighed damage to separation of powers Better safeguard of liberty than a Bill of Rights – rejected

Barron v Baltimore 1833 (eminent domain) When proposing amendments to Congress, Madison asked “would the people not be equally grateful if these ‘essential rights’ were secured against the state as well as the national government?” House agreed, Senate disagreed Barron v Baltimore 1833 (eminent domain) Supreme Court ruled Bill of Rights limited only the actions of the US Government and not those of the states “Congress shall make no law . . .”

James Madison “The Constitution was ordained and established by the people of the United States for themselves, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution provided such limitatiions and restrictions on the power of its particular government as its judgment dictated.”

BILL OF RIGHTS Marshall: had the framers of the Bill of Rights intended for them to apply to the states, they would have . . .expressed that intention. Created by the Federal Government 10th Amendment: Power not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the states. Bill of Rights delegated to the National Government, not the states.

Due Process Clause of the 5th & 14th Amendments Guarantee to individuals a variety of rights : economic liberty, criminal procedural rights, protection from arbitrary government action. SC continued to reject making B of R applicable to the states 1897 government began to hold states to a substantive due process standard whereby states had the legal burden to prove that their laws were a valid exercise of their power to regulate the health, welfare, or public morals of their citizens.

Key case: Palko v. CT (1937) Double jeopardy not a fundamental freedom – state can retry Palko Rejected total incorporation of Bill of Rights Rights defined by the Court to be essential to order, liberty, and justice – fundamental 14th amend incorporated fundamental rights only Overturned by Benton v MD – double jeopardy -5th

Selective Incorporation Supreme Court decided on a case-by-case basis, which provisions of the Bill of Rights applies to the states through the due process clause Chart on page 163 lists cases that selectively incorporated the Bill of Rights 1st to be incorporated: Gitlow v NY 1925 1st amendment – free speech, fundamental 2nd Amendment incorporated McDonald v. Chicago in 2010 – not in book

Due Process Clause of the 14th Amendment 1868 . . . No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.

14th Amendment Ensures that no individual state may deprive a person of his/her constitutional rights and freedoms: Privileges & Immunities Clause Or deprive him/her of life, liberty or property without notice and hearing: Due Process Clause – incorporation by the Supreme Court Or treat one person differently from another simply because he/she is a member of a certain class: Equal Protection Clause.

Bill of Rights How well do you know the Bill of Rights? Take the quiz. Rate from most likely to least likely amendment I could give up.