Incorporation of the Bill of Rights Overview

Sep 24, 2024

Lecture Notes: Incorporation of the Bill of Rights

Introduction

  • Key Figure: James Madison
    • Advocate for the Bill of Rights during the first Congress of 1789.
    • Believed new Constitution limited powers, not a threat to individual rights.
    • Concerned about state governments potentially violating rights.

Initial Debate on State Vs. National Application

  • Congress refused to restrict state powers.
    • Argument: State constitutions and bills of rights already protected individuals.
  • Result: Bill of Rights applied to the national government only.
    • States could theoretically pass laws violating Bill of Rights.

Incorporation Doctrine

  • Discussion Point: Should the Bill of Rights protect rights at the state level?
  • 14th Amendment (1868):
    • Aimed to protect rights of African Americans post-13th Amendment.
    • Focused on protecting against state violations.
    • Key Clauses:
      • Black citizenship
      • Privileges and immunities
      • Equal protection
      • Due process: "Nor shall any state deprive any person of life, liberty, or property without due process of law."
  • Supreme Court Role:
    • Used the Due Process Clause to apply Bill of Rights to states (Incorporation Doctrine).
    • Despite the Fifth Clause—Congress's power to enforce provisions.

Key Supreme Court Cases

  • Neer v. Minnesota (1931):
    • Prevented prior restraint on press.
    • Liberty of the press protected by Due Process Clause against state action.
  • Adamson v. People of the State of California (1947):
    • Justice Hugo L. Black's dissent on total incorporation of Bill of Rights.
    • Court favored selective incorporation.
  • Mapp v. Ohio (1961):
    • Addressed rights of the accused and warrantless searches.
  • Everson v. Board of Education (1947) & Engel v. Vitale (1962):
    • Cases related to religious establishment and schools.

Controversy and Impact

  • 20th and 21st Century:
    • Incorporation doctrine remains controversial.
    • Various cases have incorporated different amendments over time.
    • As of 2020, six amendments have been at least partially incorporated.

Conclusion

  • Question Posed: Does the incorporation doctrine pit fundamental rights against federalism principles?
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Note: These notes are intended to capture the essential points from the lecture. Further reading and case studies are recommended for a comprehensive understanding.