Bill of Rights For Real Life: Incorporation

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0:24 okay let’s be honest most Americans don’t think about the Bill of Rights much it’s something we take for granted like lights coming on when we flick a light switch those Americans who do think about the Bill of Rights like you might think of the Bill of Rights as a list of Rights we can claim against all government but that’s not exactly how Bill of Rights author James Madison

0:46 thought of it Madison like other Founders intended the Bill of Rights to restrict the actions of only the newly created federal government not the states which were seen as much closer to the people the Bill of Rights did not imp ose any limits on what state government or their state government officials or local government officials

1:07 could do I I hasten to add that all states from the beginning had their own constitutions that uh imposed their own constitutional limitations on what state officials could or could not do Chief Justice John Marshall echoed the founders respect for State sovereignty in 1833 in the case of Baron versus Baltimore Marshall made it clear that

1:28 even if a state wanted to shut down newspapers or confiscate private property without compensation there was nothing in the Federal Constitution to prevent it back then the Constitution just wasn’t thought applicable to state governments the Supreme Court said in Baron and Baltimore that state governments and City governments did not have to follow the requirements of the

1:51 Bill of Rights what that meant was that they could regulate businesses or regulate their citizens in ways that the national government could not act critics of the baron decision pointed out that the Declaration of Independence referred to inalienable rights and argued that these rights should be

2:11 protected against infringement by the states as well as by the federal government because there was nothing in the Constitution authorizing Congress to tell the states what to do the Constitution itself had to be amended 3 years after the Civil War the 14th amendment was ratified in order to give Congress a constitutional basis for

2:32 protecting the rights of recently freed slaves the 14th Amendment had three important Provisions one guaranteed to every citizen the privileges and immunities of citizenship uh a second said that people couldn’t be deprived of their property or Liberty without due process of law and the third guaranteed

2:53 equal protection of the laws to everyone prior to the Civil War and prior to the the passage of the 14th Amendment the states were much more independent as sovereigns the Civil War in effect changed that and the 14th Amendment changed that by making the states now Bound by many of the central

3:15 guarantees of the Constitution like equality like due process freedom of speech freedom of religion section one of the 14th Amendment reads 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

3:38 without due process of law nor deny to any person within its jurisdiction the equal protection of the laws the first real test to the 14th Amendment came in 1873 in what has become known as The Slaughterhouse Cases The Slaughterhouse Cases involved

3:59 a monopoly for slaughter houses that the state of Louisiana created and in the process of creating a a monopoly uh the state drove dozens of butchers out of business uh they had to uh Slaughter all of their cattle and process meat in a single facility and no one else was allowed to operate so The Butchers went

4:22 to court and they said wait a minute you can’t do this it’s one thing to protect health and safety it’s another to completely drive us out of business however the Supreme Court did not take the side of the butchers so what you say what do a few butchers matter in the grand scheme of things well the Court’s decision had the effect of severely limiting the privileges and immunities

4:43 clause of the 14th Amendment discussed earlier the Supreme Court said that the Privileges or immunities clause didn’t really add anything to the Constitution that it protected such esoteric things as freedom of access to Ports and things of that nature it was a five to four decision which was extremely rare in those days most decisions were unanimous

5:05 and the denters said is this what we fought a Civil War about freedom of access to Ports no we fought a civil war to protect the real freedoms of Americans and this decision has taken it right out of the constitution in 1897 the court had another opportunity to consider the 14th amendment in a case called Quincy

5:26 Railways versus Chicago the city of Chicago uh took property from uh some local companies in order to build a railroad and the property owner said well that’s fine you can do that but you have to pay us for it a jury did award very minimal

5:46 compensation and so the property owners appealed this case all the way to the United States Supreme Court and said the under the 14th Amendment states have to give us compensation for this property in Quincy the Court ruled for for the first time that part of the Bill of Rights did apply to the states through another part of the 14th Amendment the

6:06 due process clause the Quincy decision and those that followed set the stage for a revolution in individual rights the Court’s use of 14th Amendment due process opened the door for applying other parts of the Bill of Rights to the states beginning with the incorporation of freedom of speech in

6:26 1925 over the next 75 years the 14th amendment’s due process clause was used by federal courts to extend the protections of the Bill of Rights to state governments including the right to a free press religious freedom a fair trial and a guarantee against

6:47 self-incrimination this process of applying parts of the Bill of Rights to the states came to be known as incorporation today thanks to incorporation nearly every guarantee of the Bill of Rights applies to State and local government just as it applied to the federal government two centuries ago however some legal experts take

7:08 issue with the way the 14th amendment has been applied they argue that making rights a matter of process also makes them easier to infringe other critics argue that the 14th Amendment undermines the proper balance of power between the states and the national government under federalism a topic of much interest among Supreme

7:29 Court justices even today still most civil rights Advocates applaud Federal Protection of Rights through due process as a necessary part of securing individual rights this shift of power over the young life of our country has been controversial while some believe it does not reflect the true Spirit of the US Constitution

7:50 others see an increase in federal power as a good thing I’d have to say on balance I think the shift of power toward the federal government has been positive because the major area of expansion of federal power a major area of expansion has been through civil rights the federal government has

8:11 actively passed laws and the federal courts have actively uh uh ruled in cases that stop States and state officials including police officers uh from interfering with and violating the individual rights of their citizens from the beginning of American History there’s been a kind of tug of war

8:33 between the states on the one hand and the federal government on the other hand over who got to control What whose sovereignty was more important that is one of the uniquely American contributions to government and we’ll always have that tug of war we go through periods where the states appear stronger we go through periods where the

8:53 federal government appears stronger and that tension is very much part of our current constitutional law I think it’s a healthy tension and I think it’ll probably always be there as you have seen and heard experts can debate at length on a number of points but there is one thing they can all agree on the incorporation of individual rights against all levels of government makes

9:15 the protections listed in the Bill of Rights more important than [Music] ever