Incorporation Doctrine - Constitutional

Barron v. Baltimore (1824) - John Barron was co-owner of a profitable wharf in the harbor of Baltimore. As the city developed and expanded, large amounts of sand accumulated in the harbor, depriving Barron of the deep waters which had been the key to his successful business. He sued the city to recover a portion of his financial losses.

1. Held: Fifth Amendment claim against the city of Baltimore REJECTED because the constitutional amendments did not apply to the states and local governments

2. purpose of Constitution was to create/limit federal govt, not states

3. States were trusted; closer to the people

4. States had their own constitutions

Reconstruction Amendments – contains no explicit statement that the Bill of Rights applied to the states.

1. Does 14th Amendment, Section I incorporate the Bill of rights?

   1. “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

2. Meaning of Privileges or Immunities Clause

   1. John Bingham (principal author of 14th): P&I are defined by first eight amendments. These 8 articles were never limitations upon power of the States until made so by the 14th.

3. Slaughter House Cases (1872) – Butchers argue that Louisiana’s grant of slaughterhouse monopoly to New Orleans company violates 13th amendment, 14th Due Process, Equal Protection, P&I

   1. Held: 13th amendment is about slavery, not other analogous forms of servitude. Not applicable.

   2. Held: 14th amendment due process is a provision regarding procedural rights, not to have a particular job. Not applicable.

   3. Held: 14th amendment EP was designed exclusively for benefit of black citizens. Not applicable.

   4. Held: 14th P&I – purpose of provision is to protect US citizens from state governments; not to protect citizens of a state from their own state

      1. Article IV, Sec 2: Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States

      2. Cornfield v. Coryell (1823) interpreted P&I clause to protect fundamental rights that are traditionally domain of the States to protect. Should not assume 14th Amendment was intended to put federal courts and Congress in charge of all of that without a clear expression of purpose

      3. The P&I of federal citizenship (right to come to seat of govt/make claim against it, free access to sea ports) do not include rights protected under Bill of Rights

      4. E.S. Corwin: “Unique among constitutional provisions, the privileges and immunities clause of the Fourteenth Amendment enjoys the distinction of having been rendered a practical nullity by a single decision of the Supreme Court rendered within five years after its ratification.”

4. Twining v. New Jersey (1907) - Twining, a bank director, was charged with a misdemeanor (deceiving a bank examiner). Twining declined to testify at his trial. Under New Jersey law, the prosecutor commented upon Twining's failure to testify. A jury convicted Twining; he appealed.

   1. Held: The rights safeguarded by the first eight Amendments are protected by the 14th Amendment as applied to the states

   2. Neither the Privileges and Immunities Clause nor the Due Process Clause embraces the right against self-incrimination found in the Fifth Amendment. Moody rested the Court's opinion on the historical record, which led him to the view that the right against self-incrimination was not fundamental.

5. Gitlow v. New York (1922) – Arrested for distributing “left wing manifesto” pursuant to a state criminal anarchy law.

   1. Held: Threshold issue: Does the First Amendment apply to the states? Yes, by virtue of the liberty protected by due process that no state shall deny (14th Amendment). On the merits, a state may forbid both speech and publication if they have a tendency to result in action dangerous to public security, even though such utterances create no clear and present danger.

   2. "dangerous tendency" test. The legislature may decide that an entire class of speech is so dangerous that it should be prohibited. Those legislative decisions will be upheld if not unreasonable, and the defendant will be punished even if her speech created no danger at all.

6. Total v selective incorporation

   1. Total incorporation – the clear intent of the 14^th Amendment was to make these rights applicable against the states, and that in any event it would give too much power to judges if we were to just pick and choose which ones

   2. Selective incorporation – the history of the 14^th Amendment was anything but clear, and total incorporation did not give enough respect to states and therefore violated federalism

      1. Test for incorporation – only those “principles of justice so rooted in the tradition/conscience of our people...