POLI 4020* Con Law Notes

Theories of Incorporation

Barron v. Baltimore

Hurtado v. California

Palko v. Connecticut

Adamson v. California

Rochin v. California

Griswold v. Connecticut

Barron v. Baltimore (1833)

*No Incorporation

Facts: Barron owned a deep and profitable wharf. City construction diverted streams and caused sand and dirt to pile up in the water. Thus, the water became too shallow for ships to dock, which ruined Barron’s profits. Barron sued the city, saying they took his private property without providing just compensation. 

Holding:  The Bill of  Rights limits only the federal government, NOT state/local governments. The 5th Amendment didn’t protect citizens from state or local actions.  

Hurtado v. California (1884)

*Total Incorporation

Facts: Hurtado killed the man having an affair with his wife. Instead of a grand jury indictment, he was charged and convicted on information. 

• Hurtado said that his 14th Amendment Right to Due Process was violated.
  
  

Holding: The Fourteenth Amendment (Due Process Clause) does not require states to use grand jury indictments in criminal  felony prosecutions 

Palko v. Connecticut (1937)

*First real incorporation case - Selective Incorporation

Facts:  Palko kills two police officers. He was charged with 1st-degree murder but convicted of 2nd-degree murder and given a life sentence. Connecticut appealed. The court ordered a new trial; Palko was convicted of 1st degree murder and sentenced to death. 

• Palko sues, saying this is double jeopardy = tried for the same crime twice in the same level of the judiciary 

Holding: the Fifth Amendment’s protection against double jeopardy did not apply to state courts 

Reasoning: Introduced the principle of “selective incorporation” = only rights “implicit in the concept of ordered liberty” apply to states 

• If you're going to stay in your own country and you are focusing on the fundamental rights, these are the ones you should focus on to have a free society: 1st Amendment, 5th Amendment’s Eminent Domain Clause, 6th Amendment‘s Right to Counsel

Adamson v. California (1947)

Fundamental Fairness

Facts: Adamson was charged with breaking in and murdering an old lady. He was tried with first-degree murder. He chose not to testify during his trial because it would allow the prosecutor to incriminate him due to his prior criminal record. The judge and the prosecutor (district attorney) were allowed to comment on the defendant’s refusal. The prosecutor told the jury they could conclude that he was guilty due to his refusal. 

• Adamson said this violated his 5th Amendment right against self-incrimination and should apply to the states based on the 4th Amendment.

Holding: The Court concluded that state trials only needed to meet general standards of fairness rather than adopt every specific provision of the federal Bill of Rights 

• Fundamental Fairness: Rather than have the honor roll (some rights are fundamental and some not), let's decide which is fundamental on a case-by-case basis 

Rochin v. California

Griswold v. Connecticut

Schenck v. U.S.

Facts: Schenck was a member of the Socialist Party. He printed, distributed, and mailed leaflets to men eligible for the draft. These leaflets encouraged opposition to the government’s involvement in WWI and urged them to resist the draft. Schenck was convicted for violating the Espionage Act.

Ruling: Schenck was convicted of violating the Espionage Act.

Why: Speech is not protected if it brings about a clear and present danger that leads to substantive evils that Congress has a right to prevent. Whether speech is protected is also based on proximity and degree. Speech made during peacetime may not be acceptable during war time.

Gitlow v. New York

Facts: Gitlow, who was a Socialist, published a pamphlet, Left Wing Manifesto, which encouraged a proletarian revolution. There was no evidence introduced at trial that his publications led to any unlawful action. He was tried and convicted under the New York Criminal Anarchy Act.

Ruling: Gitlow’s conviction under the New York Criminal Anarchy Act was upheld.

Why: The statute prohibits speech that advocated for the overthrow of organized government by unlawful means, which the Court believed the Left Wing Manifesto did. The State has the right to punish speech that harms public welfare and incites crime.

• YET: The First Amendment Right to speech and the press is a fundamental right protected by the Due Process Clause of the 14th Amendment from impairment by the States.

Dennis v. U.S.

Facts: Dennis, a Communist, was indicted under the Smith Act of 1940 for willfully and knowingly conspiring to teach and advocate for the forceful and violent overthrow of the government.

Ruling: Dennis's conviction under the Smith Act of 1940 was upheld.

Why: The 1st Amendment right to free speech does not protect speech that advocates for the unlawful overthrow of the government. The Judge also modified the “clear and present danger" test to have more detail. Restrictions on free speech and press were only permissible if they posed a clear, and not only present, but probable danger. Dennis’ speech did pose a clear, present, and probable danger.

Brandenburg v. Ohio

Chaplinsky v. New Hampshire

Roth v. U.S.

Miller v. California