1. The Bill of Rights and the Incorporation Doctrine

2. Objectives Understand how the Bill of Rights is organized Understand how the Bill of Rights is organized Learn the basic rights contained in each amendment Learn the basic rights contained in each amendment Understand how most of these rights have been applied against the states under the “selective incorporation” doctrine Understand how most of these rights have been applied against the states under the “selective incorporation” doctrine

3. The Bill of Rights Generally, the first ten amendments to the Constitution Generally, the first ten amendments to the Constitution Several states were unwilling to ratify the Constitution until a Bill of Rights had been added/promised Several states were unwilling to ratify the Constitution until a Bill of Rights had been added/promised Most state constitutions already included a version of most of these rights Most state constitutions already included a version of most of these rights

4. Rights in the Bill of Rights 1 st Amendment: 1 st Amendment: Freedom of religion (no establishment/free exercise) Freedom of religion (no establishment/free exercise) Freedom of speech Freedom of speech Freedom of the press Freedom of the press Right to peaceably assemble Right to peaceably assemble Right to petition government for redress of grievances Right to petition government for redress of grievances

5. Rights in the Bill of Rights 2 nd Amendment: right to keep and bear arms; state militias 2 nd Amendment: right to keep and bear arms; state militias 3 rd Amendment: no quartering of soldiers without permission/legislation 3 rd Amendment: no quartering of soldiers without permission/legislation 4 th Amendment: 4 th Amendment: Protection against unreasonable searches and seizures Protection against unreasonable searches and seizures Warrants require probable cause and particularity Warrants require probable cause and particularity

6. Rights in the Bill of Rights 5 th Amendment: 5 th Amendment: Right to indictment for felonies (except military) Right to indictment for felonies (except military) No double jeopardy No double jeopardy Right against self-incrimination Right against self-incrimination No loss of life, liberty or property without due process of law No loss of life, liberty or property without due process of law No “takings” of private property without just compensation No “takings” of private property without just compensation

7. Rights in the Bill of Rights 6 th Amendment: 6 th Amendment: Right to a speedy and public trial in place of crime (transfers are possible) Right to a speedy and public trial in place of crime (transfers are possible) Right to know nature/cause of the accusation (arraignment) Right to know nature/cause of the accusation (arraignment) Right to confront witnesses (some exceptions) Right to confront witnesses (some exceptions) Right to compel attendance of favorable witnesses (subpoenas) Right to compel attendance of favorable witnesses (subpoenas) Right to assistance of counsel—a very important right (Gideon v. Wainright) Right to assistance of counsel—a very important right (Gideon v. Wainright)

8. Rights in the Bill of Rights 7 th Amendment—right to trial by jury in civil cases 7 th Amendment—right to trial by jury in civil cases 8 th Amendment: 8 th Amendment: No excessive bail No excessive bail No excessive fines No excessive fines No cruel and unusual punishment No cruel and unusual punishment

9. Rights in the Bill of Rights 9 th Amendment—presence of enumerated rights does not suggest others do not exist 9 th Amendment—presence of enumerated rights does not suggest others do not exist 10 th Amendment—powers not given to federal government or prohibited to States are reserved to the States 10 th Amendment—powers not given to federal government or prohibited to States are reserved to the States These latter two amendments are more “procedural” than “substantive”—they do not create any rights These latter two amendments are more “procedural” than “substantive”—they do not create any rights

10. Who/What is Restricted by the Bill of Rights? In 1791, Bill of Rights understood to apply only to national government In 1791, Bill of Rights understood to apply only to national government The 1 st Amendment expressly applies only to Congress The 1 st Amendment expressly applies only to Congress Should the Bill of Rights apply to the states? Should the Bill of Rights apply to the states? Prior to the Civil War, there was no real issue. The answer was “no.” Most felt state constitutions had adequate protection for individual freedoms. Prior to the Civil War, there was no real issue. The answer was “no.” Most felt state constitutions had adequate protection for individual freedoms.

11. The 14 th Amendment 14 th Amendment: 14 th Amendment: Persons born/naturalized in U.S. are citizens (made former slaves citizens) Persons born/naturalized in U.S. are citizens (made former slaves citizens) “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” “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 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 laws” “nor deny to any person within its jurisdiction the equal protection of the laws” What did this new Amendment do to the Bill of Rights? What did this new Amendment do to the Bill of Rights?

12. Possibilities Extend the entire Bill of Rights to the States based on P&I clause Extend the entire Bill of Rights to the States based on P&I clause Extend the entire Bill of Rights to the States based on due process clause Extend the entire Bill of Rights to the States based on due process clause The first two would be “total incorporation” The first two would be “total incorporation” A third option would be to apply some portions of the Bill of Rights to the states based on either P&I or due process A third option would be to apply some portions of the Bill of Rights to the states based on either P&I or due process This would become known as “selective incorporation” This would become known as “selective incorporation”

13. Selective Incorporation For about 60 years, there was no real change For about 60 years, there was no real change 1925—Twining v. New Jersey—applied 8 th Amendment protections to the States based on due process 1925—Twining v. New Jersey—applied 8 th Amendment protections to the States based on due process Also in 1925—Gitlow v. New York—applied 1 st Amendment free speech to the States via 14 th Amendment Also in 1925—Gitlow v. New York—applied 1 st Amendment free speech to the States via 14 th Amendment Gradually, more and more amendments and portions of amendments became selectively incorporated via the 14 th Amendment Gradually, more and more amendments and portions of amendments became selectively incorporated via the 14 th Amendment Pace accelerated in the 1960’s Pace accelerated in the 1960’s Today, most of the Bill of Rights has been incorporated Today, most of the Bill of Rights has been incorporated

14. Exceptions—Provisions Not Incorporated 3 rd Amendment—has been incorporated in the 2 nd Circuit (Engblom v. Cary—1982), but not in other circuits 3 rd Amendment—has been incorporated in the 2 nd Circuit (Engblom v. Cary—1982), but not in other circuits Unlikely to receive Supreme Court attention (not much of an issue in modern times) Unlikely to receive Supreme Court attention (not much of an issue in modern times) 5 th Amendment—grand jury indictment clause not incorporated 5 th Amendment—grand jury indictment clause not incorporated Unlikely to receive further Supreme Court attention because of state constitution provisions Unlikely to receive further Supreme Court attention because of state constitution provisions 7 th Amendment—jury trial in civil cases 7 th Amendment—jury trial in civil cases 8 th Amendment—”cruel and unusual” is clearly incorporated; no specific ruling on “excessive fines” and “excessive bail” 8 th Amendment—”cruel and unusual” is clearly incorporated; no specific ruling on “excessive fines” and “excessive bail” All the others have been incorporated! All the others have been incorporated!

15. Review Questions Complete the practice test attached to today’s lesson Complete the practice test attached to today’s lesson Turn in for class participation credit Turn in for class participation credit