Development over time Nationalizing trend Incorporation of the Bill of Rights

Freedom from unreasonable search and seizure (4 th Amendment) Being able to marry whom you want Freedom to practice a religion that uses narcotics (controlled substances) Having equal access to public accommodations Freedom from self-incrimination

Liberties Rights  What: Citizens’ protection from government  Question of individuals  Where: Bill of Rights  How: Due Process clause (you not being deprived of life, liberty or property by government)  What: Citizens are protected by the government (equal treatment)  Question of groups (racial, gender, etc.)  Where: 14 th Amendment  How: Equal protection clause

Liberties in the BOR  Congress shall make no law... Speech Religion Assembly Petition Press  Freedom from... Double jeopardy Testify against self Unreasonable search and seizure Cruel and unusual punishment Takings... ? Does the Bill of Rights limit both the state and the federal government from infringing on your rights?

NO: Barron v. Baltimore (1833)  Facts: Barron’s wharf was polluted by the local government (Baltimore), Barron sues over just compensation clause  Did the national government deprive Barron of his property?  To which of your “citizenships” does the BOR apply?  The Court: BOR is protection from the national government  So, if a state deprived you of your rights, you have a case, but that was not the case here  People were “dual” citizens: state and national

YES: 14 th Amendment (1868)  “All persons... Are citizens of the US and the state wherein they reside.”  Created a single, national, citizenship

NO: Slaughterhouse Cases 1873  Slaughterhouse monopoly granted by state of Louisiana  Is there a national right to practice an occupation free from a state created monopoly?  Court said no. The “privileges and immunities” clause in the 14 th does not make the BOR apply to the states

YES: Gitlow v. New York (1925)  Gitlow wanted to overthrow the government by force  NY law made such actions illegal  Court sided with NY: provisions of the BOR apply to the states  Press (1931)  Assembly (1939)  All are “fundamental personal liberties”

NO: Palko v. Connecticut (1937)  Palko was found guilty of a 2 nd degree murder, the state retried him to get 1 st degree  Supreme Court said freedom from double jeopardy was not a “fundamental” liberty (like speech, etc.)

Since then, the Court has incorporated...  First  Fourth  Fifth (except the Grand Jury Clause)  Sixth  Eighth (cruel and unusual punishments)  This is called “selective incorporation” of the BOR  Implication: the federal government has much more to say about how state and local governments operate

Plessy v. Ferguson (1896)  “Separate but equal”

Brown v. BOE (1954)  Separate is inherently unequal

Civil Rights Act (1964)  Title VII: Employment (Why?)  Commerce clause!  Hiring practices  Established equal access to public accommodations (restaurants, bars, hotels, etc.)  Title IX  Education  Women’s athletics

Americans with Disabilities Act 1990  Employment protections to people with disabilities

LGBT  1993: Military Policy (Don’t Ask; Don’t Tell)  1986: Bowers v. Hardwick  1996: Romer v. Evans  2003: Lawrence v. Texas

Affirmative Action  1969: Nixon administration initiates  1978: Bakke  2003: Gratz and Grutter