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Thread: Incorporation via the 14th Amendment

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    Incorporation via the 14th Amendment

    Continuing (and advancing, I hope) a conversation from another thread or two.

    I will not offer any personal swipes and will ignore any directed at me.

    Since the 14th Amendment was passed, the courts have ruled many times that it applies the requirements of the Bill of Rights to state governments most of the time. The idea was that if you are a citizen of the U.S. but a state takes away your rights, you don't really have federal rights anyway. It is called incorporation and it is accepted legal doctrine.

    Here's a link explaining it:

    Section I of the 14th Amendment states, in pertinent part that:

    "...No State shall make or enforce any law which shall abridge the privilege 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."

    History
    The 14th Amendment was ratified in 1868, shortly after the Civil War. It was created primarily to ensure that the rights of former slaves (freed by the 13th Amendment in 1865) would be protected throughout the nation. The need for the amendment was great, because up to this time the provisions of the Bill of Rights were not enforceable against state governments. This was due to the case of Barron v. Baltimore (1835). In this case, the U.S. Supreme Court held that the provisions of the Bill of Rights were enforceable against only the federal government (and not against state governments) due to the federal structure of the nation. Therefore, without a constitutional amendment justifying federal intervention in the affairs of the states, states hostile to the interests of the newly freed slaves might still legally discriminate against or persecute them.

    While some of the amendment's supporters felt that the amendment would incorporate all of the provisions of the federal Bill of Rights to the states, this was not to be. In the Slaughterhouse Cases (1875), the view of these supporters was rejected, and the U.S. Supreme Court held that the "privilege and immunities" clause did not automatically incorporate (apply) all of the provisions of the Bill of Rights to the state. Over time though, the Court began to use the "due process" clause of the 14th Amendment to achieve the same end. The following is a list of all the provisions of the Bill of Rights that have thus far been incorporated by the U.S. Supreme Court to the states through the "due process" clause.
    Year and Amendment Constitutional Provision Incorporated Supreme Court Case
    1897 Fifth Just compensation clause Chicago, Burlington, Quincy Railroad Co. v. Chicago
    1925 First Freedom of speech Gitlow v. New York
    1931 First Freedom of the press Near v. Minnesota
    1932 Sixth Right to counsel (in capital cases) Powell v. Alabama
    1937 First Freedom of assembly/petition DeJonge v. Oregon
    1940 First Free exercise clause Cantwell v. Connecticut
    1947 First Establishment clause Everson v. Board of Education
    1948 Sixth Right to a public trial In re Oliver
    1949 Fourth Protection against unreasonable search and seizures Wolf v. Colorado
    1962 Eighth Prohibition on cruel and unusual punishments Robinson v. California
    1963 Sixth Right to counsel (non-capital felonies) Gideon v. Wainwright
    1964 Fifth Right against self-incrimination Malloy v. Hogan
    1965 Sixth Right to confront adverse witnesses Pointer v. Texas
    1966 Sixth Right to an impartial jury Parker v. Gladden
    1967 Sixth Right to a speedy trial Klopfer v. North Carolina
    1967 Sixth Right to obtain favorable witnesses Washington v. Texas
    1968 Sixth Right to a trial by jury in non-petty criminal cases Duncan v. Louisiana
    1969 Fifth Prohibition of double jeopardy Benton v. Maryland
    1972 Sixth Right to counsel in imprisonable non-felony cases Argersinger v. Hamlin

    It is important to note, though, that not all provisions of the Bill of Rights have been incorporated to the states. In fact, in some cases, the U.S. Supreme Court has expressly refused to do so. For example, in Hurtado v. California (1884) the Court refused to incorporate the Fifth Amendment's grand jury requirement to the states.

    Source: Monk, Linda R., 1995, The Bill of Rights: A User's Guide, Second Edition Close Up Foundation), p. 215.
    Understanding Federal and State Courts - Educational Outreach

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    Re: Incorporation via the 14th Amendment

    Quote Originally Posted by misterman View Post
    The idea was that if you are a citizen of the U.S. but a state takes away your rights, you don't really have federal rights anyway.
    The 14th Amendment ensures that the Bill of Rights are granted on the State Level. How does a State taking away a right mean you don't have Federal rights?

    from your link:

    "...No State shall make or enforce any law which shall abridge the privilege 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."
    Last edited by EpicDude86; 12-08-09 at 11:29 PM.

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    Re: Incorporation via the 14th Amendment

    One of my two fav amendments: 9th & 14th

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    Re: Incorporation via the 14th Amendment

    Quote Originally Posted by CrusaderRabbit08 View Post
    One of my two fav amendments: 9th & 14th
    I smell an awesome poll question...may I?

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    Re: Incorporation via the 14th Amendment

    Quote Originally Posted by EpicDude86 View Post
    I smell an awesome poll question...may I?
    Sure ..go for it.

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    Re: Incorporation via the 14th Amendment

    Quote Originally Posted by CrusaderRabbit08 View Post
    Sure ..go for it.
    Done. Fav Amendment Poll. woot woot.

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    Re: Incorporation via the 14th Amendment

    I haven't had occasion to read other posts regarding the 14th Amendment, so what point are you trying to make regarding the 14th Amendment? There are 5 sections to this amendment so what section concerns you the most? Let me state the amendment here.

    AMENDMENT XIV
    Passed by Congress June 13, 1866. Ratified July 9, 1868.

    Note: Article I, section 2, of the Constitution was modified by section 2 of the 14th amendment.

    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.

    Section 2.
    Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age,* and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

    Section 3.
    No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

    Section 4.
    The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

    Section 5.
    The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

    *Changed by section 1 of the 26th amendment.
    The Bill Of Rights on boortz.com

    If you want you might gravitate over to the 26th amendment as indicated above and talk of the pros and cons of 18-year olds voting.
    Last edited by bicycleman; 12-09-09 at 07:17 AM.

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    Re: Incorporation via the 14th Amendment

    Quote Originally Posted by EpicDude86 View Post
    The 14th Amendment ensures that the Bill of Rights are granted on the State Level. How does a State taking away a right mean you don't have Federal rights?
    If a state passes a law that, for instance, restricts your freedom of speech, then you have no right to freedom of speech. It's pointless to have a Bill of Rights if one government can still take away all your rights anyway.

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    Re: Incorporation via the 14th Amendment

    Quote Originally Posted by bicycleman View Post
    I haven't had occasion to read other posts regarding the 14th Amendment, so what point are you trying to make regarding the 14th Amendment? There are 5 sections to this amendment so what section concerns you the most? Let me state the amendment here.
    Section 1. It says if you are a citizen of a state, you're a citizen of the United States too, so the rights you have as a U.S. citizen can't be taken away by the state government.

    The reason I posted this is because in another thread, I explained that the Bill of Rights also limits the powers of state governments due to the 14th amendment. My link shows how this happened. Some people didn't know that, and insisted strenuously that it wasn't true, simply because they didn't know it.

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    Re: Incorporation via the 14th Amendment

    The 14th applies our rights, such as the limited ones presented in the Bill of Rights, to the State governments as well. It's not a bad thing in general, so long as the original amendments are held to their words. For instance, the first amendment says that Congress can make no law respecting the establishment of religion, etc. The 14th makes it clear that the State's Congresses can make no law respecting the establishment of religion, etc. Notice, it does not say that the State's cannot put up religious displays on public land. As that is an act of the community, and since the individuals of the community own the land and the local government, they can use it as they like so long as they do not infringe upon the rights of others in the process.
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    "I should have loved freedom, I believe, at all times, but in the time in which we live I am ready to worship it."

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