Incorporation of the Bill of Rights:
Does the BoR protect citizens against violations of their rights by the state/local
Is it the national gov’s job to step in and protect these rights when state/local
gov’s do intrude?
The extension of this protection took years (making it an issue of federalism).
, (eventually 14
) – main ones to study
First: freedoms (speech, petition, press, religion, assembly), “establishment clause” and
“free exercise clause”
: Searches and seizures (warrants)
: Indictment to be held by grand jury (unless in the army), double jeopardy, self-
incrimination, due process of law, eminent domain
BoR made to satisfy the anit-feds concerned with a too-strong national Government and
will not protect individual rights. At the time, little fear of state govs imposing on their
States/localities are much more likely to infringe on rights since national
government must cater to a much broader set of inteterest.
1833 – Barron v. Baltimore
Warf became too shallow to use (being deprived of property) without due process
of law, sued under 5
Marshall: BoR applies to national but not state
1857 – Dred Scott v. Sandford
federal power of slaves in a territory.
What are fed protections of citizens against
1846, sues for his freedom and wins at lower state level, but appeals court
deem Wisconsin’s free state standing an unaffecting upon Missouri laws.
brought to fed court.
Chief justice Tawney rules that since he’s a citizen in a state vs the
us, he couldn’t sue.
However, at the time, other ex-slaves/black men were already given
citizen rights in many other states.
Tawney distinguishes between state and national
citizenry, articulating a doctrine of dual citizenship, thus not entitled to due process (a
The doctrine of vesture interest (strengthens due process and the 5
protect Sanford, not scott, providing substantive coverage instead of just procedural,
arguing for the rights of property).
-a means of preventing legislative ruling
concerning the rights of property. BoR not being extended to protect rights of citizens