Incorporation of Bill of Rights

Question 1

Pre-Civil War view of incorporation: Barron v. Baltimore (1833)

Answer 1

Only applicable to the Federal Government and did not extend to the States

Question 2

Fourteenth Amendment Sec. 1

Answer 2

[Every citizen of the US]
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.

Question 3

Slaughter-House Cases (1872)

Answer 3

Question presented (as relevant for our purposes): Does a state law granting a monopoly to a certain slaughter-house violate the privileges and immunities clause of the Fourteenth Amendment?

Holding: No

Relevance: Establishes that the privileges and immunities protected by the Fourteenth Amendment do not incorporate the rights protected by the Bill of Rights.

Question 4

Saenz v. Roe (1999) [Stevens]

Answer 4

Holding: Law limiting welfare benefits that new residents could receive violated the privileges or immunities clause of the Fourteenth Amendment.

Strict scrutiny applies: Relevance: Example of the rights protected under the privileges and immunities clause of the Fourteenth Amendment after Slaughter-House.

Question 5

Recently incorporated rights on States

Answer 5

McDonald v. Chicago (2010): 2nd Am.

Timbs v. Indiana (2019): 8th Am.

Ramos v. Louisiana (2022): 6th Am.

Relevance: Establish that rights are incorporated under the Due Process Clause if they are fundamental to our scheme of ordered liberty, or deeply rooted in Nation’s tradition and history, and that rights have the same meaning when applied to states.

Question 6

Review; Incorporation Doctrine 14th Am. Due Process

Answer 6

The privileges and immunities clause of the Fourteenth A. does not incorporate the provisions of the bill of rights. Slaughter-House Cases (1872)

For most rights, the scope of right protected by the Fourteenth Amendment is the same as the scope of the substantive federal right (Ramos v. Louisiana (2020))

Question 7

How Rights are Incorporated Under the 14th Am.

Answer 7

Provisions of the bill of rights are incorporated through the due process clause if they are fundamental to our scheme of ordered liberty, or deeply rooted in Nation’s tradition and history. (E.g., McDonald v. Chicago (2010); Timbs v. Indiana (2019))

Question 8

Unincorporated Rights

Answer 8

Third Amendment prohibition on quartering soldiers

Seventh Amendment right to jury in civil cases

Fifth Amendment right to grand jury indictment