Civil Liberties, Civil Rights, and Incorporation: Barron, Slaughterhouse, Gitlow, and the Fourteenth Amendment

Civil Liberties vs Civil Rights

• Civil liberties: protections built into the legal/constitutional framework that limit government power over individuals. They are yours because you are a person; government doesn’t grant them — they are a function of human dignity or nature. Examples include freedom of speech and freedom of religion. The government’s job is to refrain from taking these away.

• Civil rights: laws and policies created by government to protect individuals from arbitrary or discriminatory treatment by the government (or by others acting under government authority). They are policies the government enacts to ensure equal treatment.

• Key distinction: civil liberties are constraints on government power; civil rights are government-provided protections against unequal or arbitrary government action.

• The Tenth Amendment emphasizes state powers: “Reserve powers to the states.” In practice, this is relevant to the balance between federal guarantees and state discretion.

• The unit plan: first study civil liberties, then civil rights.

The Bill of Rights and the Question of State vs Federal Application

• The Bill of Rights was ratified in $1791$ and initially was understood to limit the federal government, not the states.

• Barron v. Baltimore (1833): Baron Barron objected that a city’s actions (through eminent domain) damaged his wharf. The Supreme Court ruled that the Bill of Rights restricts only the federal government, not the states. A famous paraphrase from the decision: if the framers had meant for the amendments to apply to the states, they would have said so.

  • Eminent domain: government power to take private property with just compensation.

• The practical implication: early on, states could violate what would later be recognized as rights without federal constraints.

• The Slaughterhouse Cases (1873): another key moment signaling limits on applying BoR rights to the states, reinforcing state authority in that era.

• Core problem: how do you extend federal protections to state governments? This sets up the need for a constitutional mechanism to apply these rights to the states.

The Fourteenth Amendment: Citizenship, Due Process, Equal Protection

• Ratified in $1868$.

• Three core provisions relevant to incorporation:

  • Citizenship: 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.

  • Due Process Clause: No state shall make or enforce any law abridging the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty, or property.

  • Equal Protection Clause (included in the same amendment): ensures equal protection under the law.

• Why this matters today: the 14th Amendment provides a vehicle to apply federal protections to the states, particularly through the due process and equal protection clauses. Citizenship and due process are especially salient for contemporary policy debates about birthright citizenship and other due process protections.

• Important conceptual point: in late 19th and early 20th centuries, the interpretation of what liberties “liberty” or “property” encompassed evolved, especially under the due process clause.

The Incorporation Doctrine: Mechanism and Scope

• Incorporation is the process by which the Supreme Court uses the due process clause of the $Fourteenth Amendment$ to make parts of the Bill of Rights apply to the states.

• Definition (to memorize):

  • Incorporation doctrine is when the Supreme Court uses the due process clause of the $Fourteenth Amendment$ to make parts of the Bill of Rights apply to the states.

• This is a selective, case-by-case process: rights are incorporated one by one as specific cases reach the Supreme Court.

• The basic vehicle: due process clause of the $Fourteenth Amendment$.

• Implication: initially, many BoR protections did not apply to the states; over time, most have been incorporated, though the process is gradual and case-specific.

Case Study: Gitlow v. New York and the Birth of Selective Incorporation

• Gitlow v. New York (1925) involved Benjamin Gitlow, a socialist who distributed a manifesto advocating overthrow of the government.

• New York had criminal anarchy laws prohibiting advocacy of violence against the government.

• The Supreme Court held that the due process clause of the $Fourteenth Amendment$ can be used to apply part of the Bill of Rights to the states — specifically, freedom of speech in this case.

• Outcome: Speech rights were incorporated to apply to state governments in this context, establishing the incorporation doctrine.

• Key takeaway: Gitlow provides the classic definition of selective incorporation: it applies to a specific right (here, freedom of speech) and only in the way it was litigated in that case. Other rights (e.g., Establishment Clause, Assembly, Petition, etc.) would require separate cases to determine incorporation.

• This case also illustrates the “merits problem” Madison anticipated: if every part of the BoR had to be applied to the states, the Supreme Court would face a very large, inconsistent body of rights across different contexts.

The Evolution and Limits of Incorporation

• After Gitlow, almost every part of the Bill of Rights has been incorporated through subsequent cases, though not all at once. The general trend is toward applying most protections to the states.

• The process remains selective and incremental: each right (or clause) is examined in a separate case, with the court determining whether and how it should be applied to the states.

• The ongoing question: which rights are incorporated, and under what precise terms? This is why you’ll hear about “selective incorporation” and why there are often debates about the scope of a given right at the state level.

Quick Recap of the Timeline and Core Points

• $1791$: Bill of Rights ratified; first ten amendments; initially understood to constrain the federal government.

• $1788$: Constitution ratified; baseline structure of the federal government.

• $1833$: Barron v. Baltimore — BoR applies to the federal government, not the states.

• $1868$: Fourteenth Amendment ratified — citizenship, due process, equal protection.

• $1873$: Slaughterhouse Cases — further signaled limits on applying BoR rights to the states.

• $1925$: Gitlow v. New York — incorporation of freedom of speech via due process clause; marks birth of selective incorporation.

• The current status (as discussed): most rights in the BoR have been incorporated by now; the process is gradual and case-based.

• The core mechanism enabling incorporation: the due process clause of the $Fourteenth Amendment$.

Practical and Philosophical Implications

• Ethical balance: protecting individuals against government overreach while allowing states some policy discretion (as seen in early history prior to incorporation).

• Wartime vs peacetime tensions: speech restrictions in wartime (as in Gitlow’s context) illustrate the delicate balance between security and liberty.

• Accountability and equality: incorporation helps ensure that all citizens receive the same constitutional protections, regardless of state boundaries.

• Policy relevance today: the Fourteenth Amendment remains central to debates on citizenship, due process, and equal protection in contemporary law and politics.

Key Concepts to Memorize for the Exam

• Civil liberties vs civil rights: what they protect and who provides them.

• The Tenth Amendment: reserved powers to the states.

• Barron v. Baltimore (1833): BoR restricts the federal government, not states.

• Fourteenth Amendment (ratified $1868$): citizenship; due process; equal protection.

• Due process clause as the vehicle for incorporation.

• Slaughterhouse Cases (1873): limitations on incorporation in the post-Cillien era.

• Gitlow v. New York (1925): first major incorporation ruling; establishes selective incorporation; speech incorporated via the due process clause.

• Selective/incorporation doctrine: rights are applied to the states one by one through case-by-case litigation.

• The difference between incorporation and expansion of rights: incorporation applies BoR protections to the states; expansion recognizes additional protections under state laws within the framework of constitutional rights.

Study Prompts and Next Steps

• Be able to explain the difference between civil liberties and civil rights with examples.

• Trace the incorporation timeline and explain why the Fourteenth Amendment’s due process clause is essential.

• Explain Barron v. Baltimore and why it mattered for federal vs state application of the BoR.

• Describe the significance of Gitlow v. New York and how it initiated selective incorporation.

• Understand why incorporation is described as a case-by-case process and the practical implications of that approach.

• Read Chapter 4 (and 5) in preparation for the next class and the open-note quizzes focused on these topics.