Driving Question:
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. Use the court cases to discuss your arguments: Gitlow v. New York, Roe v. Wade, Mapp v. Ohio, and Miranda v. Arizona.
Thesis:
The founding fathers created a government that would inhibit the power of the federal government yet, at the same time, create a unified and stable system for all Americans. This unified system is evident through the prohibition of Selective Incorporation which diminished the power of states over the federal government in fulfilling amendments of the constitution. Evident in cases such as Gitlow v. New York, Roe v. Wade, Mapp v. Ohio, and Miranda v. Arizona is the consistency and stability that the founders intended in the formation of the United States and its Constitution.
Selective Incorporation
- Constitutional doctrine in which states cannot establish laws prohibiting the Constitutional rights provided by Bill Rights for all U.S citizens.
- Essentially a limit of the power of state legislatures by the federal government. Not an established law but an established doctrine.
- Origin: Debate over the realms of power between the federal government and the states while writing the Constitution.
- Barron v. Baltimore (1833) - Ruled that the Bill of Rights is only applicable on the national level.
- 14th Amendment promoted as it prevented the states from contradicting the Bill of Rights and protected the life, liberty, and property of all Americans.
- Understanding about Selective Incorporation broadened under court cases Gitlow v. New York (1925), Roe v. Wade (1973), Mapp v. Ohio (1961), and Miranda v. Arizona (1966).
Court Cases:
Gitlow v. New York (1925)
- Gitlow (Socialist) accused of spreading manifestos promoting socialism through protest and rebellion.
- He is arrested under state law that prohibits overthrow of government.
- Nothing came out of the manifestos and protest (Defense). New York states that advocating rebellion is going against state law.
Issue:
Is New York's punishment of advocating rebellion unconstitutional under the free speech classes of the First Amendment?
Decision:
Yes, liberty is protected by due process that no state shall deny (14th Amendment). State MAY forbid both speech and publication if it may result in actions dangerous to the public's security. Developed through the "dangerous tendency" test. Legislative decisions will be upheld if not unreasonable, and the defendant will be punished even if speech has no danger. Example: Yelling "fire" in a movie theater is considered dangerous speech because it may result in a stampede of people.
Importance:
In reality, there were two amendments that were being violated in this particular court case. The first amendment through Gitlow’s socialist propaganda and the fourteenth amendment as he wasn’t allowed a “due process of law” upon arrest. This was the first major direct test of selective incorporation and passed with flying colors showing consistency and uniformity in Supreme Court decisions.
Issue:
Does the Constitution embrace a woman's right to terminate her pregnancy by abortion?
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.
Importance:
Again, Selective Incorporation is invalid as the fourteenth amendment provides privacy to all citizens under the constitution. The states cannot interfere with constitutional amendments and thus Roe won the court case. Bill of Rights and Constitution was protected and put to the test.
Issue:
Were the confiscated materials protected by the First Amendment? (May evidence obtained through a search in violation of the Fourth Amendment be admitted in a state criminal proceeding?)
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.
Importance:
Selective incorporation is revoked as a the fourteenth amendment provides women the right to privacy. A more important influence of the Bill of Rights is how once the decision was made, it was applied to 46 other states as such a decision of the Supreme Court.
Miranda v. Arizona (1966)
- Details: On March 13, 1963, Ernesto Miranda was arrested in his house and brought to the police station where he was questioned by police officers in connection with a kidnapping and rape. After two hours of interrogation, the police obtained a written confession from Miranda. The written confession was admitted into evidence at trial despite the objection of the defense attorney and the fact that the police officers admitted that they had not advised Miranda of his right to have an attorney present during the interrogation. The jury found Miranda guilty. On appeal, the Supreme Court of Arizona affirmed and held that Miranda’s constitutional rights were not violated because he did not specifically request counsel.
Issue:
Do the Fifth Amendment’s protection against self-incrimination extend to the police interrogation of a suspect?
Decision:
Chief Justice Earl Warren delivered the opinion of the 5-4 majority. The Supreme Court held that the Fifth Amendment’s protection against self-incrimination is available in all settings.
Importance:
This case pertained to an important question that had not arisen until the case of Miranda vs. Arizona. How much power did the authorities have when interrogating an individual? This was answered with the Miranda rights making the characteristics of an arrest loud and clear. In addition, this was applied to all states as selective incorporation was prohibited.
Conclusion
In conclusion, the court cases previously described demonstrate that the Constitution as interpreted by the Supreme Court is the ultimate law of the land and that the founders' intention of creating a cohesive and stable system by prohibiting selective incorporation has endured the test of time.