The Scope of Constitutional Coverage Flashcards
The Scope of Constitutional Coverage Part I
A. The Application of the Bill of Rights to State and Local Governments
B. The Application of the Bill of Rights to Private Actors
Key Questions
- Who is subject to the Bill of Rights?
- How is the Bill of Rights made applicable to these actors?
The application of the BOR to state and local governments
- Barron v. Mayor & City Council of Baltimore
- The Slaughter-House Cases
- Saenz v. Roe
- Duncan v. Louisiana
- McDonald v. City of Chicago
- Timbs v. Indiana
Cont BOR
- Originally, the Bill of Rights only applied to the federal government.
- The adoption of the Thirteenth, Fourteenth, and Fifteenth Amendments extended certain constitutional norms to state and local governments.
- However, the application of the Bill of Rights to state and local governments was still unclear.
- Gradually, the Supreme Court began applying individual provisions of the Bill of Rights to state and local governments through a process of selective incorporation.
Methodology of Selective Incorporation
Step One: Does state or local government action implicate a provision in the Bill of Rights?
Example: freedom of speech; right to bear arms; right to jury trial
Step Two: Determine whether the applicable provision in the Bill of Rights references a fundamental right.
Is the particular right fundamental to our scheme of ordered liberty or is the right deeply rooted in our nation’s history and tradition?
Step Three: If so, apply the applicable provision of the Bill of Rights to the state or local government through the Due Process Clause of the Fourteenth Amendment.
Development of Selective Incorporation
- Most provisions in the Bill of Rights have already been incorporated and apply to state and local governments.
- And so, there is no need to engage in incorporation analysis.
- Today, there are only three provisions in the Bill of Rights that have not been incorporated (and therefore do not yet apply to state and local governments).
1. Third Amendment right to not have soldiers quartered in a person’s home.
2. Fifth Amendment right to a grand jury indictment in criminal cases.
3. Seventh Amendment right to jury trial in civil cases.
Key Dates
Barron v. Mayor and City Council of Baltimore, 32 U.S. 243 (1833)
- John Barron owned a shipyard in Baltimore. He brought a claim for damages against the city government, alleging that construction work had adversely affected the sandbanks near his shipyard. As a result, most ships could no longer access the shipyard.
- The state court ruled in favor of Barron, and this decision was reversed by the state appellate court.
- The U.S. Supreme Court held that the Fifth Amendment did not apply to regulate state behavior.
- According to Justice Marshall, “the provision in the Fifth Amendment to the Constitution declaring that private property shall not be taken for public use without just compensation is intended solely as a limitation on the exercise of power by the Government of the United States, and is not applicable to the legislation of the States.”
Key dates
Fourteenth Amendment (1868)
Section 1.
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 Slaughter-House Cases, 83 U.S. 36
(1872)
- The Louisiana legislature and the city of New Orleans adopted legislation to regulate the slaughterhouse industry.
- Members of the Butchers’ Benevolent Association challenged the constitutionality of the law, claiming that it violated the Thirteenth and Fourteenth Amendments
(including the Equal Protection, Due Process, and Privileges or Immunities Clauses). - The Supreme Court offered a narrow interpretation of the Fourteenth Amendment and rejected each of the constitutional claims.
Saenz v. Roe,
536 U.S. 489 (1999)
- The right to travel is an unenumerated right and is a fundamental right.
- The right to travel encompasses three components:
1. The right to enter and leave another state;
2. The right to be treated as a welcome visitor while temporarily present; and
3. For those who want to become permanent residents, the right to be treated like other state citizens. - The third component of the right to travel implicates the Privileges or Immunities Clause of the Fourteenth Amendment.
Exam purposes
What is the first step in exam
First, it will need to be determined whether the Bill of Rights (BOR) applies to the actors involved.
Here, we have a local actor–________ (town).
What is the rule for the exam
Rule: Historically, the BOR only applied to the federal government. The Supreme Court has engaged in a process of selective incorporation wherein individual provisions of the BOR are applied to the state and local governments through the due process clause of the 14th amendment. Today, nearly all of the provisions have been incorporated with the exception of the 3rd , 5th , and 7th amendments. The provisions of the BOR that are implicated here have been incorporated, and, thus, are applied to the Town of ________ through the due process clause of the 14th amendment.
