Reading Assignments for Seventh Topic: Barron v. Baltimore and the Application of the Bill of Rights to the States

First Assignment:

1. Brendan Doherty, “Interpreting the Bill of Rights and the Nature of Federalism: Barron v. City of Baltimore,” Journal of Supreme Court History 32 (November 2007): 211-228. Available via Wiley Online Library. Registration required.

2. Barron v. Baltimore, 32 (7 Pet.) 243, 8 L.Ed. 672 (1833).

3. Fourteenth Amendment (The Due Process Clause is underlined.)

Section 1. . . . 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, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The question at the center of the following cases is the meaning of the word “liberty” in the Fourteenth Amendment Due Process Clause: what liberties are included? Specifically, are the liberties set out in the first eight amendments to the Constitution included or incorporated in the liberty protected by the Fourteenth Amendment Due Process Clause. The Incorporation Doctrine refers to the discussion of which, if any, of the liberties protected by the Bill of Rights are incorporated in or included in the concept of “liberty” in the Clause. The “Bill of Rights” here generally refers to the first eight, not first ten, amendments; the Ninth and Tenth Amendments do not refer to specific individual rights. Also, the Fifth Amendment also includes a Due Process Clause that is almost identically worded: “No person shall . . . be deprived of life, liberty, or property, without due process of law . . . .”

Second Assignment:

4. Gitlow v. People of New York, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138 (1925). Ma Gitlow and the breach of the Barron v. Baltimore doctrine.

5. Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937). Articulating the Incorporation Doctrine: the rights “implicit in the concept of ordered liberty.”

6. McDonald v. City of Chicago, 561 U.S. 742; 130 S. Ct. 3020; 177 L. Ed. 2d 894 (2010). Excerpt. Case incorporating the Second Amendment into Fourteenth Due Process.

Related Cases

Cases following the rule in Barron v. Baltimore:

Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232 (1884).

Maxwell v. Dow, 176 U.S. 581, 20 S.Ct. 457, 44 L.Ed. 606 (1900).

Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 98 (1908).

Hebert v. Louisiana, 272 U.S. 312, 316, 47 S. Ct. 103, 71 L. Ed. 270 (1926). The Court held that Due Process was violated by admitting and relying upon coerced confessions in this criminal case. See page 316 of the opinion for the rationale.

Powell v. Alabama (the Scottsboro Boys case), 287 U.S. 45, 65-68, 53 S. Ct. 55, 77 L. Ed. 158 (1932). Lack of legal counsel in a capital case violated Due Process. See pages 65-68 of the opinion for the rationale.

Brown v. Mississippi, 297 U.S. 278, 285-286, 56 S. Ct. 461, 80 L. Ed. 682 (1936). The use at trial of confessions coerced by physical torture as the basis for defendants' convictions violated the Due Process clause of the Fourteenth Amendment. See pages 285-86 of the opinion for the Court’s rationale.

Adamson v. California, 332 U.S. 46, 51-53, 67 S.Ct. 1672, 91 L.Ed. 1903 (1947). Justices Reed, Frankfurter, and Black on the incorporation argument.

Cases developing the Incorporation Doctrine of the Fourteenth Amendment Due Process Clause:

Whitney v. California, 274 U.S. 357, 47 S. Ct. 641, 71 L. Ed. 1095 (1927).

Fiske v. Kansas, 274 U.S. 380, 47 S.Ct. 655, 71 L.Ed. 1108 (1927).

Stromberg v. California, 283 U.S. 359, 51 S. Ct. 532, 75 L. Ed. 1117 (1931).

Near v. Minnesota, 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931).

Cases articulating the Incorporation Doctrine:

Duncan v. Louisiana, 391 U.S. 145, 147-48, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968). The “fundamental to the American scheme of justice” rule.

McDonald v. City of Chicago, 561 U.S. 742; 130 S. Ct. 3020; 177 L. Ed. 2d 894 (2010). Case incorporating the Second Amendment into Fourteenth Due Process.

Washington v. Glucksburg, 521 U.S. 702, 721, 117 S. Ct. 2258, 117 S. Ct. 2302, 138 L. Ed. 2d 772 (1997). The “deeply rooted in this Nation's history and tradition” rule.