1. Evolution of Civil liberties
4.1 Trace the process by which the Bill of Rights has been applied to the States.

2. Adopting the Bill of Rights
No Federal Bill of Rights in Constitution major problem during ratification
State Bills of Rights were widely viewed as the means to protect basic liberties of people
Federalists ironically didn’t see a need for Bill of Rights addition to Constitution
Anti-Federalists viewed the lack of protections as means of consolidation

3. Adopting the Bill of Rights
James Madison originally proposed an amendment that would prohibit the States from violating “equal rights of conscience, or of the freedom of the press, or trial by jury in criminal cases.” His attempt at incorporating at least these few liberties.
Congress rejected this amendment!!! BUT WHY?? What effect did this have?
So…. with the Bill of Rights adoption in 1791, most members in Congress viewed these as protections form the Federal government and protections from State governments existed with State Bills of Rights

4. Evolving Liberties
nothing in the Constitution or Bill of Rights expressly incorporated liberties
Dual System of Justice
Barron v Baltimore (1833)
Barron, Harbor, 5th amendment eminent domain
Implications of the ruling

5. Evolving Liberties Dred Scott v Sandford (1857)
Slaves, citizenship? No
Impact of this ruling added to Barron v Baltimore
Stage is set for greater oppression of slaves
Also added more fuel to the fire regarding slavery as States had such latitude to do what they wanted

6. Evolution of Liberties: Civil War
Civil War: 1861 – May 9th 1865
13th amendment ratified Dec. 6th 1865
"Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."
13th amendment abolishes slavery does nothing to the current precedent regarding rights of slaves.
Now freed slaves are still living under old S.C. precedents established by Barron and Dead Scott
Black codes were inevitable

7. Evolution of Liberties:
Civil War
14th amendment created to address Black Codes
Southern states were required to ratify 14th in order to be readmitted to Union
Section 1: All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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 laws.
Red: citizenship clause, addresses Dred Scott v Sandford. This clause changes the Dred Scott precedent. Notice this part says they are citizens of the state they live in as well
Green: privlieges and immunities clause: Madison like, attempt to incorporate basic liberties, repeats Article 4, but what rights exactly are part of privleges and imunities is not clear
Blue: due process clause, because of Barron v Baltimore precedent the 5th amendment Due Process rights only apply as a protection from federal govt, they include it here to specifically prohibit states from denying due process.
Purple: equal protections clause

8. Evolution of Liberties: 14th Amendment Citizenship clause
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
Changes the Dred Scott precedent

9. Evolution of Liberties: 14th Amendment Privileges and Immunities Clause
Already exists in Article 4 BUT Barron precedent exists
Repeats the clause but what exactly are these rights?
Slaughterhouse Cases (1873)
Louisiana Slaughtering monopoly, violate the clause, these “privileges and immunities” protections for national citizenship not State.
Mistake?
Impact?
The Slaughterhouse ruling is viewed by many as the courts greatest mistake. The Barron ruling, while we see its flaws, makes sense given the nature of our federal system in Slaughterhouse ruling doesn’t get the same “pass” because Civil War had ended, black codes had basically been overruled, and 14th amendment was ratified.
However, because the 14th amendment was only 5 years old, the ideas of equality becoming a reality hinge upon courts’ willingness to uphold the 14th amendment protections when they come up. The slaughterhouse ruling “gaffe” is a step backwards.
The Ruling: The privileges and immunities clause only applies to national citizenship, like access to courts and traveling to capital. This narrow interpretation meant that federal rights could not be incorporated at the State level under this clause.
So in order to incorporate federal rights at the State level there needed to be a different clause in the 14th that could serve as the main vehicle to drive these rights to the states.

10. Evolution of Liberties:
Section 1: All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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 laws.
SO look at all these clauses, if privileges and immunities is not the clause that justifies incorporation, which clause would?
Citizenship? – No, its pretty specific regarding citizenship and not rights
Due Process?- Most likely, but unfortunately this suggests that you must prove that a right (life,liberty,property) were unfairly taken from you. This means that its possible that a federal right exists at the state level but you'd have to prove such a right was tied to deprivation of liberty or property first.
Equal Protections?-this clause is focusing on the fair administration of laws, and the idea that if a law treats people differently, the State must demonstrate a good reason for such a difference. Furthermore

11. Evolution of Liberties: 14th Amendment Due Process Clause
nor shall any State deprive any person of life, liberty, or property, without due process of law
2 Major effects of Due Process Clause: incorporation 2. substantive due process
What does Due Process mean?
How does this clause incorporate rights at State level?
Gitlow v New York (1925) incorporation
Palko v Connecticut (1933) selective incorporation (“some bill of rights guarantees are Fundamental and necessary and absorbed by the due process clause”
rights are determined by the Supreme Court
Due Process v Substantive Due Process
After the passing of the 14th amendment the courts began to recognize that the Due Process clause incorporated certain fundamental rights at the state level.
What does Due Process mean? Due process means that legal procedures must be fair. SO in reviewing the Gitlow case, they determined that the conviction and therefore the law itself was not a violation of 1st amendment rights, but they recognized that speech rights existed (were incorporated) at the State level.
SO in Gitlow we can see that he did in fact have a fair process given to him to convict but what about the fact that the law itself even exists? If Due Process is about fair legal standards and review, what exists to evaluate the actual substance of a law itself.
substantive due process requires that the content of a law must be fair.
Ironically Palko case was about 5th amenment double jeopardy protections, court did not recognize double jeopardy as fundamental right but at same time said some of them are fundamental and absorbed by due process clause thus creating selective incorporation
From 1880s-1930s the court predominantly used substantive due process to protect property interests not liberty interests. From Gitlow moving on to today, the court primarily uses liberty intersts like teaching evolution in school (struck down), right to privacy, abortion, physician-assisted suicide.

12. Evolution of Liberties: 14th Amendment Due Process Clause
QUICK DUE PROCESS REVIEW
What is Due Process?
What is substantive due process?
What is incorporation? Selective incorporation?
What would have happened with selective incorporation if the Slaughterhouse ruling was the opposite?
How did the due process clause contribute to selective incorporation?
What is the relationship between selective incorporation and substantive due process?
Due process means fair legal standards have been afforded. So due process means you will get a process that is fair but the actual law you might be challenging could be completely unfair (Gitlow)
Substantive due process requires that the content of a law itself must be fair. With substantive Due Process there is an actual review of the content of a law. (Palko) the problem here is that the court gets to determine whether a right is fundamental or not and thus will have to evaluate cases as they come to determine if the content of a law is unfairly violating a fundamental right.
Incorporation means to apply federal rights at the state level. Selective incorporation is the means through which the court decided to apply federal rights at the state level one by one and not all at once. Had the Slaughterhouse ruling gone the other way, this would never have needed to exist.
The due process clause was used by the court to be the vehicle with which federal rights would apply to the states. But because of the slaughterhouse ruling the court had a difficult time incorporating all federal rights, and thus had to apply federal rights one by one
Because of the Palko ruling, the court became the institution that would evaluate the fairness of the content of laws. Because selective incorporation meant that court would review the application of federal rights at state level as they came, it left the courts with the discretion to also decide wheterh a right was fundamental and necessary

13. Evolution of Liberties: 14th Amendment Equal Protections Clause
nor deny to any person within its jurisdiction the equal protection of the laws.
Prohibits unreasonable discrimination, if a law treats people differently than the state must demonstrate a good reason for this difference
Civil Rights Act of 1875 Civil Rights Cases of 1883 however, the court
Civil Rights Cases 1883
Businesses begin to segregate because legally they can
Plessy v Ferguson 1896
Civil Rights Act of 1875 attempted to treat African Americans equally in public accommodations, public transportation, and to include them in jury service
Civil Rights Cases of 1883 however, the court rules that the 14th amendments equal protections clause only prevents the national and stte government from discriminating and is powerless to stop individuals

14. Evolution of liberties Review
Bill of rights as limitations of fed power, people protection
1833 Barron ruling creates dual system of justice
1857 Dred Scott ruling deprives citizenship of slaves but more importantly is a huge victory for southern legislatures to do what they want
th amendment addresses Barron, Dred Scott and incorporates rights
1873 Slaughterhouse Cases privileges and immunities is only for national citizenship and thus can not incorporate ALL federal rights
1883 Civil Rights Cases, only national and state gov’t prohibited from discriminating
1896 Plessy ruling creates legal segregation with the separate but equal ruling
1925 Gitlow incorporates 1st amendment
1937 Palko, court establishes selective incorporation by saying in the ruling that some rights are fundamental and absorbed by due process.
Palko ruling indirectly creates substantive due process and the ability for courts to create new liberties