Incorporation Cases -

Using the Due Process Clause of the 14th Amendment

Incorporation means that rights from the Bill of Rights are incorporated into the 14th Amendment. The 14th Amendment states that states may not "deprive any person of life, liberty, or property without due process of law." But remember, Justice Marshall (uncharacteristically) limited the scope of the federal governemnt in Barron v. Baltimore (1833) by declaring that the Bill of Rights does not apply to the states. In order to get the states to honor rights protected by the Bill of Rights, the Supreme Court argued that "speech" is a "liberty" interest, protected by the due process clause of the 14th Amendment. Therefore, states can't limit speech without due process (notice and hearing); practically speaking, a narrowly tailored law that seeks to satisfy a compelling state interest (strict scrutiny). The cases below were the ones used to incorporate certain aspects of the Bill of Rights. * NOTICE - Amendments 2,3,7 are not incorporated!!! Also, there are more cases than these...

Chicago, Burlington & Quincy Railroad v. Chicago (1897) - just compensation (5)

Gitlow v. NY (1925) - speech (1)

Near v. Minnesota (1931) - press (1)

DeJonge v. Oregon (1937) - assembly (1)

Cantwell v. Connecticut (1940) - free exercise of religion (1)

Everson v. Board of Education (1946) - establishment of religion (1)

Wolf v. Colorado (1949) - unreasonable search and seizure (4)

Mapp v. Ohio (1961) - exclusion of illegally obtained evidence (4)

Robinson v. California (1962) - no cruel and unusual punishment (8)

Gideon v. Wainwright (1963) - right to counsel (6)

Benton v. Maryland (1969), overturned Palko v. Connecticut (1937) - no double jeopardy (5)

Equal Protection

Brown v. Board of Education (1954)

• Separate but equal is inherently unequal; therefore a violation of the equal protection clause of the 14th Amendment.

Loving v. Virginia (1967)

• Virginia's law against inter-racial marriage is a violation of the equal protection clause.

Craig v. Boren (1976)

• Oklahoma's law establishing different drinking ages for men (21) and women (18) was a violation of the equal protection clause because their evidence did not prove there was a substantial relationship between the law and traffic safety.

California Board of Regents v. Bakke (1978)

• California's quota system for medical school admittance in a violation of the equal protection clause. Race could be used as one of many factors.

Pyler v. Doe (1982)

• Texas law denying education to illegal aliens is a violation of the equal protection clause. They are "persons" as defined by the amendment.

Richmond v. J.A. Croson (1989)

• Richmond's law granting 30% of government contracts to minorities was a violation of the equal protection clause because it was not correcting an identifiable past injustice.

Metro Broadcasting v. FCC (1990)

• FCC preferences for minority broadcast companies are constitutional because they correct historical injustice, and meet the compelling state interest to support diverse programming.

Adarand Constructors v. Pena (1995)

• Overruled Metro Broadcasting...all race based classifications must meet strict scrutiny standards, race cannot be used as the sole factor in determining historical disadvantage.

Gratz v. Bollinger (2003)

• The University of Michigan admission policy of granting 20 points to African American, Latino, or Native American students was not narrowly tailored and violated the equal protection clause.

Grutter v. Bollinger (2003)

• The Univeristy of Michigan Law School's use of race as one of many factors considered in the admission process was narrowly tailored to achieve the compelling state interest of a diverse student body.

CIVIL RIGHTS 

Race

Heart of Atlanta Motel v. US (1964)

• Civil Rights Act of 1964 is constitutional - commerce clause.

Swann v. Charlotte-Mecklenberg County Schools (1971) - integration

• Courts can enforce integration.

Women

Muller v. Oregon (1908) - Due Process

• Oregon's law limiting the number of hours of women can work in a factory to 10 did not violate their 5th Amendment right to contract (use their labor to obtain property) because women are unequal and inferior to men.

Reed v. Reed (1971) - Equal Protection

• Idaho's law designating men as executor's of estates in order to avoid hearings was a violation of the equal protection clause.

Frontiero v. Richardson (1973) - 5th Amendment Due Process

• The military's law setting different standards for dependent status among husband (harder) and wives (easier) was a violation of the 5th Amendment's due process clause because it commanded "dissimilar treatment for men and women who are similarly situated." Sex based discrimination must meet a stricter standard of review - mid-level or "intermediate scrutiny".

UAW v. Johnson Controls (1992) - Civil Rights Act of 1964

• Johnson Controls' attempt to limit fertile women's jobs that would expose then to lead was deemed discriminatory. Either all fertile men and women should not be allowed to do the jobs, or all should be allowed if they choose

Homosexuality

Bowers v. Hardwick (1986) - due process

• There is no constitutional right to (homosexual) sodomy. States may limit.

Romer v. Evans (1996) - equal protection

• Amendment 2 of Colorado's State Constitution, precluding governmental action to protect homosexuals, was a violation of the equal protection clause because it denied them the right to seek legal protection against discrimination.

Lawrence and Garner v. Texas (2003) - both

• Overturned Bowers v. Hardwick...Texas' law against homosexual sodomy violates the equal protection clause because it only applies to homosexuals, not heterosexuals (J. O'Connor). And it violates the due process clause of the 14th Amendment because sodomy is a private act and liberty interest (J. Kennedy, majority opinion).

Voting

Reynolds v. Sims (1964) - equal protection

• Alabama's apportionment scheme, with population ratios from 41-1, were a violation of the equal protection clause. Voting districts should be equally proportioned so that votes cound equally.

Shaw v. Reno (1993) - equal protection

• North Carolina's reapportionment, making a district that ran along an interstate highway in order to connect minority communities in an attempt to create a minority majority district, was suspect and must meet a compelling state interest to remain. (It did.)

Bush v. Gore (2000) - both

• The Florida Supreme Court's attempt to recount votes was unfair because it allowed for different procedures by county, district, and ballot, thus violating the equal protection clause. Breyer and Souter agreed but said another method could be used and that time was not a factor when constitutional rights are at issue. Ginsburg and Souter argued that federalism considerations allow the Florida courts ruling to stand since it was fundamentally fair.