Incorporation Flashcards
Incorporation debate - Justice Felix Frankfurter’s view
Selective Incorporation Proponent
Substantive Due Process = Rights that are essential to well-ordered liberty
Incorporation debate - Justice Hugo Black’s view
Total Incorporation Proponent
Substantive Due Process = No more and no less than the Bill of Rights provisions being incorporated against the states
Three issues centered on in the debate over incorporation
(1) history/intent of the framers - both sides claimed support
(2) federalism
(3) appropriate judicial role
What federal constitutional Bill of Rights restrictions upon the federal government have not been incorporated against the states via the 14th Amendment?
(1) Third Amendment - prohibition upon quartering soldiers in homes (this simply hasn’t come up in a case)
(2) Fifth Amendment - requirement for the government to obtain a grand jury indictment to try a defendant in a criminal proceeding
(3) Seventh Amendment - right to a jury trial in civil cases
Jot for jot incorporation - what does it mean and what are the two exceptions
Other than the Bill of Rights provisions not applied to the states, the other Bill of Rights provisions have been incorporated against the states jot for jot - the same extent/level of constitutional protection applies when the states are acting as when the federal government is acting.
Two exceptions: the Sixth Amendment requirements of (1) unanimous jury decisions to find a defendant guilty and (2) 12 persons serving on a jury in a criminal case
Rights that are covered through incorporation - this is probably not something you need to memorize, but who knows
Compensation for takings
Speech, press, religion under the First Amendment
Unreasonable searches and seizures under the Fourth Amendment
Fifth Amendment right against self incrimination
Sixth Amendment right to counsel
Right to a speedy and public trial
Right to confront witnesses
Compulsory process for obtaining witnesses
Duncan v. Louisiana takeaway - right to a jury trial in criminal cases
Right to jury trial in criminal cases is fundamental and is incorporated against the states through the 14th Amendment
Supreme Court and consistency with application of the Bill of Rights to the states compared with the federal application
Application has not always been consistent between federal and state.
The First Amendment application is identical, however it’s OK for states to have less than a 12-person jury in criminal trials, and there is no requirement for states to have a unanimous jury verdict. (Note: the unanimous jury verdict thing could soon be a historical relic, as Oregon has a bill pending that would get rid of it.)
Four Bill of Right provisions never incorporated
(1) Third Amendment right to now have soldiers quartered in a person’s home hasn’t been incorporated (hasn’t come up)
(2) Court held the Fifth Amendment right to a grand jury indictment was not incorporated
(3) Court ruled that the Seventh Amendment right to a jury trial in civil cases was not incorporated
