P361 01/09 Incorporation Doctrine PDF

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Professor Lemieux, Winter Quarter 2020...

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P361 01/09 Incorporation Doctrine Applying the Bill of Rights to the States

I.D. is the reason why we can teach the course in this way. Helps us understand why we aren't reading cases from the 18th-19th century. The Bill of Rights did not apply to the states until the end of the 19th century. Other than the 5th amendment, no part of the bill of rights would apply to the states until the 1920s. Majority of US history BOR did not apply to states. Before the 1950s, the vast majority of criminal prosecutions were done by state governments. Even today, bulk fo criminal case prosecuted by state governments, but some more plea bargains done in federal courts. For BOR applying only to the federal government would not provide meaningful rights to people going through the criminal justice system. Today's topic is the slow progress.

ORIGINS OF THE BILL OF RIGHTS – Why didn't BOR apply to the states originally? – James Madison: it's not that Madison was indifferent to

individual rights or that he did not care about limiting government power. Madison's view was just skeptical of "parchment rights" and whether they could actually protect people from the government. He didn't think just "writing stuff down" would protect anyone from the government. Madison's point was that he Constitution does not have a police force; what he thought was that the procedural parts of the constitutional (bicameralism and separation of powers) were protections in their own right. Madison's protection was that we should not limit what the federal government could do. Madison's view was that to protect the states, we just give them general powers in structure. Madison thought the key way to protect right was PROCEDURALLY by dividing power, and that just specifying rights would not do that much good. – Hamilton: problem with BOR is that by specifying certain rights,

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you might imply that those are the only rights to be protected. We will look at the right to privacy later on, where the debate plays out. Dissenters said that something specific can the constitution must forbid invasion of privacy, while majority said that there doesn't need to be a specific right in the constitution because the framers did not list it in the constitution to protect that right, or that the right is just very obvious that the home is private. 9th Amendment: mentions that we specify these rights but these list of rights should not be considered exhaustive. Key: politically, this is significant because proponents of new constitution did not care about getting a BOR, while antifederalists (group that opposed new constitution and stronger central gov.) very much wanted a BOR. The BOR was not part of the original constitution, but was a package of amendments that needed to be ratified by the states. Because the BOR was offered as a compromise to the anti-federalists, it addressed their concerns. Madison: much more concerned about state power being oppressive to minorities (homogenous society). Didn't particularly care about the bill of rights. BOR applied to the federal government because anti-feds were concerned about the federal government, and Madison wanted to get them on board, so he made the BOR, even though he thought state governments would be more threatening to individual rights because homogenous societies. 1st Amendment: "Congress" means only applies to federal government and not state government. Just looking at the text of the constitution, it is not obvious that BOR only applies to the federal government.

BARRON V CITY OF BALTIMORE – 5th Amendment: "Takings clause" = allows gov. To take private

property for public use (power of immanent domain), but only if it provides fair compensation. Though the gov. Has right to expropriate property, it can only do so if they compensate.

– The question then arose in a decision by city of Baltimore.

Barron owned a wharf in Baltimore; city did dredging that ultimately made the water shallower, so fewer ships could access the piers, so this cost Barron money. Barron sued the city. Taking usually only involves direct taking of private property (state owns it and you don't); earlier, this would not have been a taking. But in the 1920s, taking could include you having your land being decreased in value would be a taking. However, this was not the case here. Barron could still have gotten good value for the land, so a court today would just have said there was no taking. Barron case didn't even address "taking" because the taking clause did not apply to the city of Baltimore (Chief Justice said it did not apply). Marshall said that 5th Amendment didn't apply to the states, so it didn't even matter if it was a taking or not. What is Marshall's general outlook on the Constitution? Proponent of federal power. BOR did not apply to the states back then, as per vast majority opinion.

20TH CENTURY – Idea that 1st Amendment applied to the states originates – Palko v Connecticut: Did double jeopardy clause applied to the

states? Idea of DOUBLE JEOPARDY is that it is meant to stop state by harassing people by prosecution (cannot be prosecuted for the same offense more than once). FOUND IN THE FITFH AMENDMENT ("No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb...") State could appeal if someone was given a murder conviction but not a capital conviction, and appeals court threw out lower court verdict and that Palko was guilty of capital murder. Palko sued and said this consisted double jeopardy, and that the state should not prosecute him again. If the double jeopardy clause applied to the states, then the conviction of Palko on capital murder charges was unconstitutional. So the question was whether the states were bound by just the 14th Amendment or also the DJ clause (in the BOR). COURT FOUND that the DJ

clause does not apply to the states. Argument: due process clause only applies the MOST FUNDAMENTAL RIGHTS to the states. What the Chief Justice said was that things like freedom of speech (1st amendment) is CORE to the government and nation (no democracy at all if no freedom of speech), but things like having no DJ was NOT a fundamental right. Some instances of DJ could have been a violation of the Due Process clause to try him again. If the State was using DJ to harass people even after they had been acquitted, that might just violate DJ clause. But this was a unique case that said that Palko was already guilty or murder and whether it had the potential to be capital murder. – The PALKO V. CONNECTICUT ruling was that the state's second prosecution was not a violation of due process of the 14th Amendment, and also was not fundamental enough to incorporate the 5th Amendment and its Double Jeopardy Clause. – Fundamental = if no right, then no true democracy

BLACK AND FRANKFURTER – Black was from Alabama (white man from Alabama) but became

very libertarian and supportive of civil rights on the SCOTUS and strong proponent of desegregation in the 20th century. – Frankfurter had a career of civil libertarianism etc, but became very conservative in the SCOTUS and resistant of the civil rights movement in the 20th century. – What divided the two men was that Black said federal courts could be used for judicial changes and civil rights, while Frankfurter believed courts should stay out of it

NEW DEAL – SCOTUS kept striking down policies in the New Deal, so FDR

tried to add more justices to the Supreme Court so that he could pass his bills. This was "Court Packing." The Chief Justice on the SC began to support FDR's bills, and FDR was able to replace justices in the SC.

– After FDR, the SC had the decision whether to undo the

changes, or to use the "new weapons" for their own aims.

ADAMSON V CALIFORNIA – Prosecutor made a comment on Adamson's failure to testify. In

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federal courts, prosecutors were not allowed to make a comment on defendant's silence based on the 5th Amendment. So if the 5th Amendment applied to the states, there would be no question that the court had been unconstitutional and that Adamson should be retried. The question was: does the 5th Amendment apply to the states? If not, then does the prosecutor's comment mean that the trial was not done with due process? ANSWER: NO, and CA did not deny Adamson due process by commenting on his failure to testify. A right to fair trial is protected by due process clause, but due process does not draw all the rights of the federal BOR under its protection. In Palko, said that only fundamental rights are incorporated. In this case, prosecutor's ability to comment on a defendant's silence is NOT a fundamental right and is not widely recognized by the American people, and the states actions in this case do not violate the due process clause either. Frankfurter: no part of the BOR should apply to the states. Only the due process clause should be used. Frankfurter argued that: if the framers of the 14th A intended to incorporate, they would've just said it outright. Frankfurter talked about the BOR that were minor or were an outright blunder; would've been... ??? What was the problem with the way framers worded? Value of money changes. The point of that provision was that you only have a jury trial if "$20" but that is so low, so the main point was that "it has to be a big deal in order for you to get a jury trial." By specifying that number $20, that would become obsolete, so their intention was clear but the framers screwed up. Selective Incorporation may have some kind of pragmatic logic behind it: letting go some of blunders in the BOR drafting??

– I think what the prof means is this: Framers had some

intention, but did not state it clearly enough in the BOR. They "screwed up," such as in the case of the 7th Amendment which holds that lawsuits worth $20 or more must have a jury trial. Clearly, $20 is far too low an amount to demand a jury trial, yet at the time of the drafting, $20 must have been a lot. In this way, I guess it is logical to incorporate some parts of the BOR – Black: fascinated by question of whether the drafters of 14th A intended for BOR to be incorporated, and found evidence that they did. He focuses on the immunities/privileges, which was gutted in the Slaughterhouse cases. Black said that the BOR reflects exactly the privileges and immunities that the drafters of the 14th amendment wanted to use to protect people from state power. So Black said that 14th amendment was intended to incorporate BOR. Black's perspective: 5th amendment applies to the states under the 14th amendment, but he was minority. – Murphy: Specific guarantees of BOR should be carried over the 14th amendment, but not the entirety of the BOR. Black wanted clear answers to every case, so that the 14th amendment incorporates the entire BOR and nothing else.

ROCHIN V CA – Police barged into Rochin's apartment w/o search warrant.

Rochin, seeing them enter, swallowed morphine pills. The police pumped his stomach to get those tablets to provide evidence for conviction. If the 4th and 5th amendment applied to the states, then .... No search warrant, no probable cause, probably violated 5th amendment on basis of self incrimination. Do 4th and 5th amendments apply, and if not, does the LAPD actions violate the due process clause? – Frankfurter: Argues that under due process clause, justices can look at the totality of the criminal trial and determine that someone did not receive due process. Frankfurter has to answer charges that the due process was too vague.

Frankfurter argues that just in applying the due process clause is what common law judge does. May draw on personal and private notions. Frankfurter argued that the due process clause leaves some discretion, but that is what judging is: it involves looking at ambiguous phrases and doing their best to determine what they mean in a particular case. Frankfurter argued that it was too unrealistic for judges to have bright lines, and that there must be some discretion involved. F argued that this is a sufficiently extreme case to violate due process. F says that the conduct of the LAPD (no warrant and forcible pumping) goes against law enforcement tactics and "shocks the conscience." F says that just because BOR does not apply to the states does not mean states are not bound by any laws, such as the due process clause. F says due process was violated because state went too far here. Even "hardened and energetic law enforcement" cannot accept these actions. – Black: "Shocks the conscience" is not a reliable standard going forward. It would be much better for the 5th amendment to apply to the states, rather than leaving application of Due process up to the whims of the judges. – Douglas: Inadmissible because of the 5th amendment, there is no way that the LAPD would have known what would"shock the conscience." What Douglas argues here it is better for criminal defendants and the states; there needs to be clearer rules so that police know better what to do, so that courts know better how to rule, and individual rights are better protected. Due Process, as applied by Frankfurter's "conscience," is too vague for law enforcement to abide by. 5th A applies to the states, so that clearly LAPD's actions violated defendant's rights. Majority: law is created. Rule binds all lower courts and the nation's laws. Plurality: there is no 5 votes on one rule (all nine could agree on who wins, but not on the same rule. WHY someone wins is much more important than WHO wins, because Supreme Court sets laws for the nation). Someone wins the case, but no new law is created.

There must be a majority opinion to create law. Concurring opinion: Will JOIN majority opinion, but with some added remarks. Justice will use this to draw an attention to a side note. Also, could agree with majority opinion result, but does not agree with anything else in the majority (agree with who wins but disagree with rationale = concurring with judgment but not opinion). All judges agree that Rochin wins, but WHY he wins is in disagreement. If Frankfurter's opinion did not have five votes, he would not have set law. Dissent: disagrees with who wins and the rationale of the case.

DUNCAN V LOUISIANA (1968) – Further applications of "selective incorporation" – Does the 6th A right to a jury trial apply to the states? – Took place in the Jim Crow south, so there was sentiment that

jury free trials were subject to racial bias – Right to jury trial is incorporated under the 14th Amendment (selective incorporation) – Black: still argues that total incorporation still makes the most sense. Says that BOR has mostly been incorporated anyways, so whatever. Doesn't matter. – Harlan: Argues that selective incorporation is the least defensible option. Unless you believe BOR applies to state as a whole, the best way is the way Frankfurter did it through Due Process. Doesn't mean that states have to conform to BOR and the same standards that federal government is held. Common law judging. Looking at individual facts and using discretion. This case doesn't fall along ideological lines. Some judges prefer bright line rules, while some conservatives and even some liberals does not believe in bright line rules, but rather relies on looking at individual facts and making rules that are practical etc.

SELECTIVE INCORPORATION – Slow process – What rights are considered most important (fundamental)?

– First right to be incorporated was the TAKINGS CLAUSE. First

part of the Bill of Rights is that states that expropriated must provide compensation. Freedom of speech is then implicitly guaranteed. Freedom of the press was incorporated in 1931. Free exercise of religion was incorporated in 1934. Freedom of assembly in 1939. 4th amendment was only incorporated in 1949. So civil procedure cases are only starting from after WWII. After 4th amendment was applied to the states, in that 1949 case, the SC did not apply the exclusionary rule. Without the exclusionary rule, the 4th A has limited effect. But in 19... year, SC applied exclusionary rule. 2nd amendment was incorporated in 2010 (Chicago case)

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HELLER: New Frontiers in Incorporation (1/16) – 2nd Amendment was not an individual right until 2007. SC

always held that right to bear arms was a collective right that belonged to the state, so the federal gov. Could not take away power of states to have their own militias. But in 2007 that changed; the SC in the HELLER case ruled that the 2nd Amendment was an individual right, and struct down the D.C. ban on handguns. – IMPORTANT NOTE: it is a much narrower decision than it is commonly portrayed by. It struck down on ban of possession, but did not strike down regulations on who could own weapons, etc. Law abiding, mentally sound person could not be banned; very narrow actually. As of now, SC ruling permits most cases of gun regulations. – D.C. is not a state, it is under control of congress, so it was a federal law. DC is a federal district. After HELLER, SC had to again decide whether the 2nd amendment is incorporated.

MCDONALD V CITY OF CHICAGO – In McDonald, the question was whether the 2nd Amendment

applied, and the SC ruled YES. Basic argument by city: right to possess a handgun is not a fundamental right essential to the order of liberty. Pointed to other nations with much more stringent regulations but were still democratic. 2nd Amendment not fundamental. SC responds that essentially that strict interpretation of PALKO standard has not been used by the court in decades; the standard is not "is this something all virtually democracies do," but more what the American constitution and democracy demands. Standard is not all democracies, just within the US. Justice Alito argues that to ask whether something I fundamental to ordered liberty = is this something we can imagine an ordered liberty can do without? YES. We can imagine that the ownership of handguns is NOT essential to ordered liberty; city of Chicago actually had a very strong argument. But that's not really how incorporation works for 50 years; argument is "inconsistent." The problem is, that incorporation law over decades had been incorporating rights that were fairly unique to America. The standard is not "can we imagine any civil law democracy not having this," but rather if this right is deeply rooted in American tradition. – Privileges or immunities vs. Privileges and immunities (either works, same thing) – CRUIKSHANK (background in Thomas' argument) – SC ruled that it was politically motivated act, not racial.

Congress had a law that allowed federal prosecutions of racially motivated acts of terror. – Thomas brings this case up because it is a dark stain on SC history. Argues that although there is longstanding precedent, we should treat that precedent and ignore it. – SCALIA (CONCURRING): ○

Due Process Clause does not provide substantive rights whatsoever, It just says state can take away life liberty and

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property as long as it follows certain procedures. But there is longstanding theory that Due Process protects substantive rights, that there are some actions that are unconstitutional that they simply cannot be done with due process clause established. Idea that these kinds of infringements on liberty are inherently violations of the due process, even if proper procedures are followed. Scalia argues that not every case initially decided wrongly should be necessarily overturned. The more long established a constitutional reading is, the more likely the court is reluctant to overturn it, and secondly that ti is narrowly limited. If it is a mistake, it has limited ramifications. Scalia says what's the point? If we apply the different doctrine we end up with the same outcome. If both doctrines reach the same conclusion, it would be dumb to overturn. So esta...