CHAPTER THREE: INCORPORATION OF THE BILL OF RIGHTS
Type: E
1. Define what is meant by incorporation.
2. Should all of the Bill of Rights be incorporated or has the Court taken the right tack in using selective
incorporation? Why?
3. What happens to rights if the Court does not incorporate them? Is this acceptable?
4. Did the framers intend for the Bill of Rights to apply to the states? Why or why not?
5. According to Chief Justice Marshall in Barron v. Baltimore which level of government is limited by
the Bill of Rights? Why?
6. What two sections of the 14th Amendment have been used in an attempt to incorporate the Bill of
Rights?
Type: E
7. How do supporters of incorporation through the privileges and immunities clause argue this clause
specific makes rights apply to states?
8. What was Justice Miller’s rationale for dismissing the privileges and immunities clause as the vehicle
for incorporation? Is his argument logical? Why or why not?
9. Do you agree with the argument in Hurtado that because due process is a right that it cannot be the
equivalent to the entire Bill of Rights? Why or why not?
10. In Chicago, Burlington & Quincy Railroad v. Chicago how did the Court rule in terms to
incorporating the 5th Amendment taking clause? How does this case square with Hurtado?
11. Which provisions of the Bill of Rights have not yet been incorporated? Why do you think they have
not been incorporated?
12. How did Justice John Harlan’s view of incorporation differ from the majority in Hurtado v.
California? Which viewpoint is the more logical argument?
13. Given the Court’s ruling in Twining v. New Jersey when should rights be incorporated? Is this a
workable definition?
14. How did Palko extend the possibility that more rights would be incorporated in the future?
15. What major arguments did Justices Breyer and Stevens provide in their Heller dissents? Are these
good counters to the approach offered by Justice Alito in McDonald?
16. What might be the result if guarantees in the Bill of Rights were not incorporated to the states?
17. Why has the Court never fully adhered to the view of total incorporation?
18. Why did the Court choose to use selective incorporation rather than immediate full-scale
incorporation?
19. How did Harlan (II) and Stewart’s view of incorporation differ from the position advocated by
Murphy, Black, and Douglas? Which do you think is the more logical view? Why?
20. Gitlow v. New York incorporated which of the following?:
21. Duncan v. Louisiana incorporated which of the following?:
22. The Supreme Court has always taken a view of complete incorporation?
23. In Twining v. New Jersey the Court ruled that rights protected by the Due Process are:
24. The definition of fundamental rights, according to Palko includes:
25. There were ___ in James Madison’s original articles (amendments).
26. In Barron v. Baltimore the Court ruled that:
27. The Slaughterhouse Cases:
28. Free exercise of religion was incorporated by:
29. The most recent of the Bill of Rights to be incorporated is:
30. The Supreme Court has never adhered to a view of complete incorporation of the Bill of Rights to the
states, but instead has incorporated only specific portions of it through the Fourteenth Amendment. Keep
this in mind as you answer the following questions: What was the intended application of the Bill of
Rights? What was the intended application of the Fourteenth Amendment to the Constitution? Which
clauses were used to try and apply the Fourteenth Amendment to the states, and how successful were
they? What was the importance of Justice Cardozo’s opinion in Palko v. Connecticut (1937), and what
have been some of the important developments since the Palko decision? Which rights are now
considered to be applicable to the states?
HYPOTHETICAL QUESTION:
None for this Chapter.
Barron v. Baltimore (1833)
Relevant Case Facts:
In the early 1800s Baltimore was becoming a major hub of economic activity. Its growth necessitated
constant construction and excavation. Specifically, the vast amount of street construction began to alter
the flow of the rivers into Baltimore harbor. This led to an accumulation of sand and silt around their
wharves. This ruined Barron’s business because the harbor became too shallow for ships to come into
port. Barron wanted the city to pay for the dredging of the harbor, but it did not do so. In 1822 Barron
brought suit against the city asking for $20,000 in compensation for the taking of his private property.
The court awarded him $4,500 to Barron.
Legal Question: Does the Takings Clause of the 5th Amendment apply to the states?
Reasoning:
Hurtado v. California (1884)
Relevant Case Facts:
Hurtado shot and killed his wife’s lover, an offense punishable by death. While defendants often faced a
grand jury to determine if there was enough evidence for a trial, California allowed prosecutors to use an
information to initiate a trial rather than a grand jury. The state used this method to bring Hurtado to trial,
and he was found guilty of murder. Hurtado’ s lawyer objected to the trial on the grounds that Hurtado
had a right to a grand jury and to due process of law. He argued that these rights applied to federal
hearings under the 5th Amendment, and therefore the state should also apply these standards under the 14th
Amendment’s due process and privileges and immunities clause.
Legal Question: Does an individual accused of a capital crime have a right to a grand jury in state court
under the 5th Amendment?
Reasoning:
Dissenting (Harlan):
Palko v. Connecticut (1937)
Relevant Case Facts:
Palko robbed a store and shot and killed two police officers. At his trial for first degree murder, the judge
refused to admit Palko’s confession into evidence, and Palko was only convicted of second degree
murder. The state appealed to the state supreme court, which reversed the exclusion of Palko’s
confession and ordered a new trial. Palko’s attorney objected, saying that a new trial would be a violation
of the 5th Amendment’s prohibition against double jeopardy. Palko was tried again and found guilty of
first degree murder.
Legal Question: Does the 5th Amendment’s protection against double jeopardy apply to the states
through the guarantee of due process of law?
Reasoning:
Duncan v. Louisiana (1968)
Relevant Case Facts:
Duncan, a 19 year old black man, was involved in an altercation with four white youths. The nature of
the altercation was in dispute, but the principal of the school in which the boys were enrolled alleged that
Duncan had slapped one of the youths. The police questioned Duncan, but found no reason to arrest him.
Several days later, however, Duncan was arrested for cruelty to juveniles. Duncan’s family believed the
arrest was racially motivated and hired an attorney. Duncan’s attorney believed his arrest was “part of a
pattern of anti-civil rights intimidation and harassment in the area.” He argued that the Louisiana law
only allowed cruelty to juveniles for those who had supervision over the juvenile, which Duncan did not.
Knowing that they would not win their case, the mother of the boy who was allegedly slapped asked for
Duncan to be rearrested and charged with battery – an offense that carried a possible charge of two years
in prison and $300 fine. Duncan’s attorney went back asking for a jury trial, but the judge refused
because the Louisiana Constitution only allowed jury trials for cases involving hard labor or death.
Legal Issue: Is the right to a jury trial in the 6th Amendment, for non-capital cases incorporated to the
states via the 14th amendment?
Reasoning:
Concurring (Black and Douglas):
Dissenting (Harlan and Stewart):