Analyzing & explaining the doctrine of selective incorporation, demonstrate how the original impact of the Bill of Rights during the 19th Century evolved and expanded during the 20th century.
What is Selective Incorporation?
- A constitutional doctrine whereby selected provisions of the Bill of Rights are made applicable to the states through the due process clause of the Fourteenth Amendment.
Fourteenth Amendment: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. 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.
- The doctrine of selective incorporation, or simply the incorporation doctrine, makes the first ten amendments to the Constitution—known as the Bill of Rights—binding on the states.
- Through incorporation, state governments largely are held to the same standards as the federal government with regard to many constitutional rights.
The Incorporation Doctrine Includes:
- First Amendment rights to freedoms of speech, religion, and assembly, and the separation of church and state.
- The Fourth Amendment freedoms from unwarranted arrest and unreasonable searches and seizures.
- The Fifth Amendment privilege against self-incrimination
- The Sixth Amendment right to a speedy, fair, and public trial.
Gitlow v. New York (1925)
First Amendment — Freedom of Speech
- The Gitlow v. New York case established that the First amendment which protects free speech, applies not only to the federal government but to the state governments as well. It was the first decision the Supreme Court held that the right to due process was to be required at both levels.
- The case arose in November 1919 when Benjamin Gitlow, were arrested by New York City police officers for criminal anarchy, an offense under New York state law. Gitlow was a Communist Party member and publisher of The Revolutionary Age, a radical newspaper in which they printed “The Left Wing Manifesto”, which advocated the violent overthrow of the U.S. government.
- Although Gitlow argued at trial that no violent action was precipitated by the article, he was convicted, and the conviction was subsequently upheld by the state appellate court.
- The court upheld Gitlow’s conviction, but perhaps ironically the ruling expanded free speech protections for individuals. The ruling, which enabled prohibitions on speech that simply advocated potential violence, was eventually dismissed by the Supreme Court in the 1930s and later as the court became more restrictive in the types of speech that government could permissibly suppress.
By: Ubaldo Lopez
Mapp v. Ohio (1961)
Fourth Amendment — Freedom from unreasonable search and seizure
- The case originated in Cleveland, Ohio, when police officers forced their way into Dollree Mapp's house without a proper search warrant. Police believed that Mapp was harboring a suspected bomber, and demanded entry.
- No suspect was found, but police discovered a trunk of obscene pictures in Mapp's basement. Mapp was arrested for possessing the pictures, and was convicted in an Ohio court. Mapp argued that her Fourth Amendment rights had been violated by the search, and eventually took her appeal to United States Supreme Court.
- At the time of the case unlawfully seized evidence was banned from federal courts but not state courts.
- The Court brushed aside the First Amendment issue and declared that "all evidence obtained by searches and seizures in violation of the Constitution is, by [the Fourth Amendment], inadmissible in a state court."
- Mapp had been convicted on the basis of illegally obtained evidence.
- This was an historic -- and controversial -- decision. It placed the requirement of excluding illegally obtained evidence from court at all levels of the government.
- The decision launched the Court on a troubled course of determining how and when to apply the exclusionary rule.
By: Gabriella Raspall
Miranda v. Arizona (1966)
- This case represents the consolidation of four cases, in each of which the defendant confessed guilt after being subjected to a variety of interrogation techniques without being informed of his Fifth Amendment rights during an interrogation.
- Miranda v. Arizona
- Vignera v. New York
- Westover v. United States
- California v. Stewart
- The Supreme Court held that the Fifth Amendment’s protection against self-incrimination is available in all settings. Therefore, prosecution may not use statements arising from a custodial interrogation of a suspect unless certain procedural safeguards were in place.
- Argued: Feb. 28, March 1 and 2, 1966
- Decided: June 13, 1966
- Vote: 5-4
- Majority opinion written by Chief Justice Warren and joined by Justices Black, Douglas, Brennan, and Fortas.
- Dissenting opinion written by Justice Harlan and joined by Justices Stewart and White.
- Dissenting in part opinion written by Justice Clark.
Miranda v. Arizona Decision:
- After Miranda’s conviction was overturned by the Supreme Court, the State of Arizona retried him. At the second trial, Miranda’s confession was not introduced into evidence. Miranda was once again convicted and sentenced to 20-30 years in prison.
By: Soraya Quintero
Roe v. Wade (1973)
- In Roe v. Wade, Norma McCorvey wanted to have an abortion to end her 3rd pregnancy.
- However, the state of Texas had passed a law in 1854 that forbid the termination of pregnancy unless the women’s life was in danger, which wasn’t the situation here.
- With the help of two lawyers, Linda Coffee and Sarah Weddington, Norma claimed that the abortion law violated her constitutional rights.
- The Supreme Court ruled that 1st, 4th, 5th, 9th, and 14th Amendments inferred a right to privacy and that as long as the fetus was not viable, than it was within the woman’s right to choose if she wanted to have an abortion because the fetus was part of her body. The court stipulated that this could be done in the first 6 months of the pregnancy.
Roe v. Wade Decision:
- The Court held that a woman's right to an abortion fell within the right to privacy (recognized in Griswold v. Connecticut) protected by the Fourteenth Amendment.
- The decision gave a woman total autonomy over the pregnancy during the first trimester and defined different levels of state interest for the second and third trimesters.
- As a result, the laws of 46 states were affected by the Court's ruling.
By: Gabriella Raspall