“INCORPORATING” the Bill of Rights (Applying the Bill of Rights to the States) DUE PROCESS CLAUSE of the 14th Amendment (1868) “…nor shall any STATE deny any person of life, liberty, or property without due process of law” State governments must adhere to appropriate procedures ex.) establish guilt beyond a reasonable doubt State governments cannot take unreasonable actions ex) laws that establish maximum work hours for adults DUE PROCESS CLAUSE as a “SPONGE” Courts “wring out” the Due Process Clause like a “sponge” to ensure that states protect “fundamental freedoms” Palko v. Connecticut (1932) – establishes idea of “fundamental freedoms” Duncan v. Louisiana (1968) – jury trials for non-petty crimes (6th Amendment)

DUE PROCESS CLAUSE (14th Amendment) = “SPONGE” The Supreme Court has used the 14th Amendment’s Due Process Clause as a sponge, absorbing most - but not all – of the provisions in the Bill of Rights and applying them to state and local governments. All provisions of the Bill of Rights apply to the national government.

“INCORPORATING” the Bill of Rights (Applying the Bill of Rights to the States) DUE PROCESS CLAUSE as a “SPONGE” (continued) Courts “wring out” the Due Process Clause like a “sponge” to ensure that states protect “fundamental freedoms” Gideon v. Wainwright (1963) – right to counsel (6th Amendment) Miranda v. Arizona (1966) – rights of the accused (5th and 6th Amendments) Wolf v. Colorado (1949) – protection against unreasonable searches and seizures (4th Amendment) Mapp v. Ohio (1961) – Exclusionary Rule (4th Amendment) U.S. v. Leon (1984) – Good Faith Exception to the Exclusionary Rule

The 9th Amendment & Personal Autonomy “The enumeration of certain rights shall NOT be construed to deny or disparage others reserved by the people.” – 9th Amendment (i.e., You have rights not listed in the Bill of Rights) CONTRACEPTION and ABORTION Griswold v. Connecticut (1963) Struck down state law that criminalized use of contraceptives Court ruled that specific guarantees in the Bill of Rights have penumbras that give life to (“illuminate”) unspecified protections in the Bill of Rights Protections in 1st, 3rd, 4th, 5th Amendments create a zone of privacy Zone of privacy guaranteed by 9th Amendment Zone of privacy protected from state encroachment by Due Process Clause of 14th Amendment (“sponge” idea) Roe v. Wade (1973) Court struck down a Texas law that made it a crime to obtain an abortion except for the purpose of saving a woman’s life Months 1-3: decision to abort left to woman and physician Months 4-6: states may restrict but not prohibit abortions Months 7-9: states may regulate or prohibit abortions to protect life of the fetus, except in instances where abortion is necessary to save mother’s life

The 9th Amendment & Personal Autonomy CONTRACEPTION and ABORTION (continued) Webster v. Reproductive Services (1989) Court upheld constitutionality of Missouri law that denied the use of public employees or publicly funded facilities in the performance of an abortion unless the mother’s life was in jeopardy Law also required doctors to perform tests to determine whether fetuses 20 weeks or older could survive outside the womb Ruling marked 1st time that Court upheld significant government restrictions on abortion Justice Sandra Day O’Connor articulates that state restrictions on abortions are permissible provided that they do not impose “undue burdens” on the mother Planned Parenthood v. Casey (1992) Court reaffirms Roe decision by using Justice O’Connor’s “undue burden test” for the first time to strike down a spousal notification provision of Pennsylvania law that required a mother to inform her husband of her intent to abort a pregnancy Court upheld the informed consent, 24-hour waiting period, and parental consent provision for minors seeking an abortions

The 9th Amendment & Personal Autonomy “The enumeration of certain rights shall NOT be construed to deny or disparage others reserved by the people.” – 9th Amendment (i.e., You have rights not listed in the Bill of Rights) “The enumeration of certain rights shall NOT be construed to deny or disparage others reserved by the people.” – 9th Amendment (i.e., You have rights not listed in the Bill of Rights) “The enumeration of certain rights shall NOT be construed to deny or disparage others reserved by the people.” – 9th Amendment (i.e., You have rights not listed in the Bill of Rights) “The enumeration of certain rights shall NOT be construed to deny or disparage others reserved by the people.” – 9th Amendment (i.e., You have rights not listed in the Bill of Rights) “The enumeration of certain rights shall NOT be construed to deny or disparage others reserved by the people.” – 9th Amendment (i.e., You have rights not listed in the Bill of Rights) SEXUAL ORIENTATION Bowers v. Hardwick (1986) Court held that the Constitution does not protect homosexual relations between consenting adults, even in the privacy of their own homes Ruling seems to contradict findings in privacy cases involving contraception and abortion Court upheld a Georgia law outlawing homosexual sodomy and maintained that only heterosexual choices – regarding marriage, childbirth, conception – fall within zone of privacy established by the 9th Amendment Lawrence and Garner v. Texas (2003) Court overturns the Bowers decision by ruling that a Texas state law that criminalized sexual intimacy between same-sex couples violated the Due Process Clause of the 14th Amendment

(i.e., You have rights not listed in the Bill of Rights) The 9th Amendment & Personal Autonomy The 9th Amendment & Personal Autonomy The 9th Amendment & Personal Autonomy The 9th Amendment & Personal Autonomy The 9th Amendment & Personal Autonomy “The enumeration of certain rights shall NOT be construed to deny or disparage others reserved by the people.” – 9th Amendment (i.e., You have rights not listed in the Bill of Rights) STUDENT RIGHTS Vernonia School District v. Acton (1995) Based on an investigation that revealed that its student-athletes were using illegal drugs, the Vernonia School District of Oregon adopted Student Athlete Drug Policy which authorized random urinalysis drug testing of its student athletes James Acton and his parents refused to consent to the testing; as a result Acton was prohibited from participation on the football team Court had to resolve the question of whether random drug testing of high school athletes violates the reasonable search and seizure protection of the Fourth Amendment Ruling: Court ruled in favor of the Vernonia school district explaining that governmental concern over promoting the safety of minors (“a compelling government interest”) overrides the minimal intrusion on student privacy (i.e., the drug testing was the “least restrictive means” of promoting student safety)

The 9th Amendment & Personal Autonomy STUDENT RIGHTS (cont’d) Owasso Independent School District v. Falvo (2002) A parent, Kristja Falvo asked the Owasso ISD to ban the practice of peer grading (students grading one another’s work) because it embarrassed her children. When the school district refused to stop peer grading, Falvo filed suit, claiming that peer grading violated the Family Educational Rights and Privacy Act (FERPA) of 1974 FERPA authorizes federal funds to be withheld from school districts that permit student education records to be released without parental consent. Overturning a U.S. Appeals Court ruling, the Supreme Court ruled that peer-graded work did not constitute student records; therefore, peer grading did not violate FERPA Board of Education v. Earls (2002) Similar to the Vernonia (1995), the Court ruled that no Fourth Amendment violations occur when a school district requires urinalysis testing for its students – even when the testing is suspicion-less – because the school has a “compelling interest” to detect and prevent drug use among its students.