Incorporation Doctrine (exists in 14A DPC) Flashcards
Prior to the BoR if something was reviewed it was done under the…
Contracts Clause
Barron v. Mayor and City Council of Baltimore: P owned and operated a wharf and brought suit alleging that when completing street construction, City ruined his wharf by diverting streams and making water too shallow. P wanted to be compensated for the city’s actions because the construction affected his wharf business.
Issue→Whether the city can undertake construction that destroys an individual’s property without providing just compensation under the Takings Clause of the 5th A?
Holding (Marshall, C.J. )→Yes; 5A applies to federal government, not state government because it was not explicitly listed in the amendment that it applies to the states; 5A “just compensation” clause intended for a limitation on the US government (not state)
– Each state adopted its own constitution to create a state government, thus amendments to US Constitution necessarily only apply to federal government
– Nothing in constitutional text suggests that amendments were meant to be applied as limitation on state government powers
– State didn’t have same takings clause→P out of luck; case dismissed
– State Supreme Courts can decide if states’ BOR violated
US splits it up so states can decided if there is BOR violation
Could be why Plaintiff wanted to go to federal courts so it could be based on the federal constitution
This Case comes before the existence of the 14th amendment.
Dred Scott v. Sandford: Dred Scott claimed to have been freed by travels to free states, but widow wouldn’t let him buy his slavery, and Stanford insisted Scott couldn’t bring a court action as he was not a citizen.
Arguably contributed to outbreak of civil war a few years earlier: Huge damage to Supreme Court Rep; Overturned after Civil War
Issue:
Whether dred scott is a legal person who has a right to sue?
–> Taney: NO
And if he is, would the national law in Wisconsin set him free
–> Taney: NO
Rule: People of African descent brought to US as slaves, as well as their descendants (either slave or free), not considered citizens and not entitled to protections and rights of Constitution.
—- Not citizen, can’t sue in federal court.
—- Citizen in constitution not meant to be applied to Slaves.
Scott’s Lawyers Arguments: “All men are created equal … life liberty and pursuit of happiness…”
Slaughter-House Cases: NOLA outbreak of disease, state allowed monopoly of slaughtering to control, P claimed violation of Const.
Issue→Whether the LA statute creating a monopoly violated the 13th and 14th Amendments
Holding (Miller, J)→No
13A was passed to specifically prohibit the evils of slavery as it existed during the pre-Civil War enslavement of African Americans
Privileges and Immunities clause only protects the privileges and immunities guaranteed by the US and not by the individual states
– Does not include civil rights
– Clause does not apply in the present case→too narrow
No precedent supports finding that the LA restraint on butchers constitutes a deprivation of their property without due process of law
EPC does not apply because in present case the LA statute does not involve emancipated slaves or a race issue
The court basically says that the amendments these claims involved (13A and 14A) were established for the purpose of invalidating laws that discriminated against African Americans
– 14A is not intended to safeguard the plaintiffs against the types of injuries for which they seek relief
Palko v. Connecticut
articulates the case of selective incorporation. Guy was tried on 2nd degree murder but his conviction was set aside by the highest state court on appeal. On retrial he was convicted of 1st degree murder. He argued this violated double jeopardy arguing that whatever is forbidden by the 5th amendment is forbidden by the 14th. Justice Cardozo writing for the majority said there is no such general rule. (Note: later the court did incorporate double jeopardy in Benton v. Maryland)
Adamson v. California
Adamson says convicted violated 14th amen because prosecution commented on how he never took the stand as evidence of guilt. This would violate the 5th amendment right against self incrimination in federal court, but the Maj. Cardozo followed Palko and said that they found no ground that would make the self-incrimination privilege applicable to the states. Black Dissent: Total incorporation view. Original purpose of the 14th was to extend to all the people of the nation the complete protection of the BOR. Frankfurter Concurrence: Anti total incorporation view. If we do that then that means DP only applies to rights enumerated in the first 8 amendments and not any later abuses we might encounter. + would unduly limit state autonomy in the enforcement of criminal law
Duncan v. Louisiana: Defendant convicted of simple battery in state court state court; D sought jury by trial, but the state constitution granted jury trials only in cases in which capital punishment or imprisonment at hard labor could be imposed. D’s request was denied→brought suit alleging an infringement of his constitutional right to a jury trial
Majority (White): Selective incorporation, 14A guarantees a right to a jury trial in all state criminal cases that would be eligible for trial by jury under the 6A
Concurrence (Black, J): 14A, as a whole, makes BOR applicable to the states; Privileges and immunities clause can also be used to grant jury trials in state court proceedings
Dissent (Harlan): Methodology of Courts Shifted → towards Total Incorporation
Incorporation and the 2nd Amendment
In DC v. Heller, court found that individual self defense is a basic right, which forms the central component of 2A’s right to bear arms→deeply rooted in nation’s history and tradition
In McDonald v. Chicago, Alito’s majority found that the 2A is incorporated to the states through 14A.
– Dissent (Breyer): nothing in the country’s history supports Heller’s findings that a private right of self defense is incorporated under the 14A against states. Analysis of state gun laws better left to legislatures, not the courts.
– Dissent (Stevens) firearms can assist both in self defense but also contribute to the murder of innocent people.The right to possess a particular type of firearm is also different from liberty interests previously identified under the Due Process Clause, because it is not necessary in order to live a life of autonomy, dignity, and political equality, and because of its risk to other people’s security. Moreover, state regulation on gun possession is just as deeply rooted in the nation’s history and tradition as the individual interest in possessing a firearm
NY state Rifle and Pistol Association v. Bruen: NY required permits for handguns
Thomas for majority: If it’s common use → then you have a right to it = NY law violates 14th A., not just 2nd A.
The majority recognizes the history, but the weapon at issue (hand guns) are not “unusual” –they are the main weapon for self-protection.
The constitutional right to bear arms in public for self-defense is not a second class right (aka saying it’s a fundamental right = 14th A. applies
Alito in Concurrence: the effect of guns on American society is irrelevant to the issue (criticizing the dissent)
Barret in Concurrence: noting two methodological points the Court did not resolve:
1) how does postratification affect the original meaning of the constitution?
2) should the courts rely on the understanding of an individual right when the 14th A. was written OR when the BoR was written?
Breyer in dissent: states should be able to pass restrictions in an effort to curb the number of deaths caused by gun violence, and the Court’s decision “severely burdens the States’ efforts to do so” by refusing to consider NY’s compelling interest in this regulation. The court’s excessive reliance on history is impractical.
