Beruflich Dokumente
Kultur Dokumente
CONSTITUTIONAL BASICS...................................................................1
THE RATIONAL BASIS TEST..................................................................1
THE STRICT SCRUTINY TEST................................................................2
THE INTERMEDIATE SCRUTINY TEST......................................................4
DUE PROCESS & INCORPORATION........................................................5
EQUAL PROTECTION........................................................................13
FREEDOM OF SPEECH......................................................................20
FREEDOM OF RELIGION....................................................................30
CONSTITUTIONAL BASICS
A. THE APPLICATION OF THE BILL OF RIGHTS TO THE STATES
a. Bill of rights was historically just for feds states could
violate
b. Reconstruction amendments changed that
i. 14th Amendment placed Limitation on STATE
government
ii. 1: US citizenship privileges & immunities due
process (life, liberty, property) equal protection to
all in jurisdiction.
B. SC has identified certain fundamental rights that no state can
take away without violating 14th amendment
C. SC has incorporated and made applicable to states almost all of
bill of rights along with a few extras.
D. Rights NOT incorporated:
a. 3rd amendment quartering soldiers
b. 6th amendment grand jury
c. 7th amendment civil jury trial
d. 8th amendment prohibition of excessive fines
THE RATIONAL BASIS TEST
a) Forvirtuallyalllaws/regulationsandgovernmentactionsunlessotherwise
specified.
i. AgeclassificationsMass.Bd.ofRetirementmakecopsretireat
50
ii. DisabilityclassificationsCityofCleburnedisablednow
protectedbyADA
iii. WealthclassificationsSanAntonioSchoolDistrictv.Rodriguez
povertyisNOTasuspectclassification(also,nofundamental
righttoeducation)
b)
c)
d)
e)
f)
iv. SexualorientationRomerv.EvansWindsoranimusnot
legitimatepurpose
Rationallyrelatedmeanstoalegitimategovernmentpurpose(end)
i. Courtextremelydeferentialtothegovernment
ii. Endsmustbelegitimate,andthemeansmustberationallyrelated
iii. Tolerantofsignificantoverinclusiveness
Legitimateendsvirtuallyanygoalnotprohibitedbyconstitution
i. AnimustowardtraditionallydisfavoredgroupisNEVERa
legitimateendRomerv.Evans
ii. IrrationalfearandprejudiceisNOTalegitimateendCityof
Cleburne
Rationallyrelatedmeansalegislaturecouldhaverationallycomeup
withthisasawaytoaccomplishend.
i. RailwayExpresscitycanproperlydistinguishbetweengeneral
advertisementandadssoldbytruckownerssobanokay
ii. Beazeracitycanbanalldrugusers,eventhoseintreatment,
fromworkinginthetransitauthoritynotirrational
Rationalbasiswithbitemorerigorousreviewfoundincasesof
traditionallydisfavoredpopulation(butnotsuspectclass)
Burdenofproofonthechallenger.
iii. FaciallyNeutralLawsWithDiscriminatoryImpactor
DiscriminatoryAdministrationWashingtonv.Davis(blacks
disproportionatelyfailpolicetestdiscriminatoryimpactnot
enoughwithoutdiscriminatorypurposenoclassificationso
rationalbasisreview)McCleskyv.Kemp(criminalstatute
discriminatoryimpactbutnotconscious,deliberatebiasupheld
Baldusstudycasenoclassificationsorationalbasisreview)
PersonnelAdministratorv.Feeney(hiringpreferenceforvetshas
impactonhiringofwomenawarenessofthislikelyimpactdoes
notshowdiscriminatorypurposenoclassificationsorational
basisreview)
1. Evidentiarytoolstodiscoverdiscriminatoryintent:
1. Historicalbackground
2. Departuresfromnormalprocedure
3. Departuresfromnormalsubstance
4. Specificsequenceofevents
5. Legislationoradministrativehistory
6. Discriminationneednotbesolepurpose;mustbea
motivatingfactor(VillageofArlingtonv.Metro
HousingDevelopment)
iv. Racialclassificationsbenefittingminoritiesstrictscrutinyto
evaluateANYclassificationthatburdensoneracemorethan
another(remedialandinvidiousdiscriminationalike)Richmond
v.Crozan30%ofcitycontractsmustgotominorityowned
businessesGeneralsocietaldiscriminationisnothelda
compellinggovernmentinterestspecificpastdiscriminationby
theentityrequired.
v. EducationAffirmativeActionenhancingdiversityinthe
classroomisacompellinggovernmentinterestineducation.
Grutter(UMLawmayconsiderraceamongothersoftvariables)
Gratz(UMundergradmaynotadd20pointstoeachminority
studentsscoretoomuchlikequotaorsetaside)Fisherv.UT
Austin(govtmustshowtherearentbettermethodstoachieve
diversitytakingtop10%fromeachhighschooldoesntdoit).
l) Strictscrutinyforalienageclassifications
i. GeneralruleforlegalnoncitizensstrictscrutinyGrahamv.
Richardsonnotokaytowithholdwelfarebenefitfromlegal
aliensbyimposingresidencydurationrequirement
ii. Congressionallyapproveddiscriminationrationalbasisforacts
ofCongressandPresidentbecausetheyarechargedwith
diplomacy,internationalrelationsandimmigrationtheycanlimit
alienrightsinwaysstatescannot.Matthewv.Diazcongresscan
imposeminimumresidencyrequirementforfederalMedicare
iii. Alienageclassificationsrelatedtoselfgovernmentanddemocratic
process=rationalbasisreview.Alienscantvote.d)
UndocumentedaliensandEPPlylerv.Doeillegalaliensare
breakinglawsonotentitledtoprotectionbutcannotwithhold
freepubliceducationfromtheirkidsDifferentscrutinytestfor
illegalaliensPlylertest:
1. Substantialstategoal
2. Rationallyrelatedmeans
3. Kindofrationalbasisplus
THE INTERMEDIATE SCRUTINY TEST
m) ForGenderClassificationsandDiscriminationagainstNonMarital
Children.
n) Test:EndImportantGovtObjective;MeansSubstantially
RelatedtothatEnd.
o) BOPonthegovernment.
p) GENDERCLASSIFICATIONS
i. LevelofscrutinyFrontiero(AirForcedependentcasestrict
scrutinynolongerthestandard)Craigv.Boren(3.2beerfor
women1821andnothingformenestablishedintermediate
scrutiny)VMIcase(exceedinglypersuasivejustification=
intermediatescrutiny)
ii. ProvingexistenceofGenderClassificationlawsthatclassify
intotwogroupsarenotclassifiedbasedongenderwhenoneofthe
sexescanbelongtobothgroupsPersonnelAdministratorv.
Feeney(hiringpreferenceforvetshasimpactonhiringofwomen
awarenessofthislikelyimpactdoesnotshowdiscriminatory
purposenoclassificationsorationalbasisreview)Geduldig
(pregnancydiscrimination)
iii. GenderClassificationsBenefittingWomen
1. Genderclassificationsthatbenefitwomenanddisadvantage
menareconstitutionalwhenbasedonlegitimatebio
differencesandnotonstereotype
2. AsaremedyokayCalifano(SSArulefavorswomento
compensateforpastdiscriminationandlackofopportunity)
3. BasedonrolestereotypesnotokayUSv.Va.
(generalizationsaboutwomennotwantingadversarial
educationstyleatVMI)Miss.WomensUniv.(keep
nursingschoolallwomendoesntremedydiscrimination
becausewomenarethebulkofnurses)
4. BasedonBiologicalDistinctionsGeduldig(pregnancy
discriminationisnotgenderdiscriminationbecause
men/womeninnonpregnantgroup)MichaelM.
(criminalizationofsexwithteengirlbutnotteenboyheld
alegitimatebiodifferencebecauseimpactofsexdifferent
ongirls)Nguyenv.INS(okaytohavedifferentburdento
proveparenthoodbymotherandfatherkindofobvious
whothemomis)
The question for the court was whether an offense subject to two years
imprisonment is a serious offense. The majority noted that at the
time of ratification, crimes punishable by more than six months
imprisonment were typically subject to jury trial. Furthermore, both
federal law and forty-nine states recognized that a crime carrying a
sentence of over one year necessitated a jury trial. The Court found
that the Louisiana law was out of sync with both the historical and
current standards of the justice system and was therefore ruled
unconstitutional.
Senz v. Roe, 526 U.S. 489 (1999)
FACTS: In 1992, the state of California enacted a statute limiting the
maximum welfare benefits available to newly arrived residents. In
1997 the two plaintiffs in this case sued in the same court as the prior
litigants, this time challenging both the California statute and the
PRWORA's durational residency provision.
RULING: Justice Stevens, writing for the majority, found that although
the "right to travel" was not explicitly mentioned in the Constitution,
the concept was "firmly embedded in our jurisprudence." The main
focus of his opinion was the application of the Fourteenth Amendment.
For the proposition that this amendment protected a citizen's right to
resettle in other states, Stevens cited the majority opinion in the
Slaughterhouse Cases:
It has always been common ground that this Clause protects the third
component of the right to travel. Writing for the majority in the
Slaughter-House Cases, Justice Miller explained that one of the
privileges conferred by this Clause "is that a citizen of the United
States can, of his own volition, become a citizen of any State of the
Union by a bona fide residence therein, with the same rights as other
citizens of that State."
District of Columbia v. Heller, 554 U.S. 570 (2008)
A landmark case in which the Supreme Court of the United
States held in a 5-4 decision that the Second Amendment to
the United States Constitution applies to federal enclaves and
protects an individual's right to possess a firearm for
traditionally lawful purposes, such as self-defense within the
home. The decision did not address the question of whether
the Second Amendment extends beyond federal enclaves to
the states, which was addressed later by McDonald v. Chicago
(2010). It was the first Supreme Court case to decide whether
called the Connecticut statute "an uncommonly silly law" but argued
that it was nevertheless constitutional.
Roe v. Wade, 410 U.S. 113 (1973)
The Court ruled 72 that a right to privacy under the Due
Process Clause of the 14th Amendment extended to a woman's
decision to have an abortion, but that this right must be
balanced against the state's two legitimate interests in
regulating abortions: protecting women's health and
protecting the potentiality of human life. Arguing that these
state interests became stronger over the course of a
pregnancy, the Court resolved this balancing test by tying
state regulation of abortion to the third trimester of
pregnancy.
Southeastern Pennsylvania v. Casey (1992)
The Court rejected Roe's trimester framework while affirming
its central holding that a woman has a right to abortion until
fetal viability. The Roe decision defined "viable" as "potentially
able to live outside the mother's womb, albeit with artificial
aid." Justices in Casey acknowledged that viability may occur
at 23 or 24 weeks, or sometimes even earlier
Gonzales v. Carhart, 550 U.S. 124 (2007)
A United States Supreme Court case that upheld the PartialBirth Abortion Ban Act of 2003. The Supreme Court's decision
upheld Congress's ban and held that it did not impose an
undue burden on the due process right of women to obtain an
abortion
Loving v. Virginia, 388 U.S. 1 (1967)
A landmark civil rights decision of the United States Supreme
Court that invalidated laws prohibiting interracial marriage.
RULING: The court ruled that Virginia's anti-miscegenation statute
violated both the Due Process Clause and the Equal Protection Clause
of the Fourteenth Amendment.
Chief Justice Earl Warren's opinion for the unanimous court held that:
Marriage is one of the "basic civil rights of man," fundamental to our
very existence and survival.... To deny this fundamental freedom on so
unsupportable a basis as the racial classifications embodied in these
EQUAL PROTECTION
A. EP clause is a fundamental guarantee that, without some
sufficient reason, similarly situated people deserve to be treated
alike.
B. Analysis 3 questions
a. What is the classification? Age, gender, religion, race,
economics?
b. What is the appropriate level of scrutiny?
i. Discrete insular minority hardest look Carolene
Products
c. Does governments action meet the level of scrutiny?
i. Ends what is govt trying to accomplish Means
how does it accomplish those ends
Railway Express Agency, Inc. v. New York, 336 U.S. 106 (1949)
RULING: A New York City traffic regulation forbids the operation of any
advertising vehicle on the streets, except vehicles which have upon
them business notices or advertisements of the products of the owner.
The Court held that if the classification was related to the purpose for
which it was made, then it did not contain the kind of discrimination
against which the Equal Protection Clause afforded protection.
Therefore, the court affirmed the lower court's judgment.
United States Railroad Retirement Board v. Fritz (1980)
FACTS: The retirement fund for railroad employees originally provided
a windfall for those who were eligible for social security and railroad
benefits. But, in 1974, Congress determined that the system would be
bankrupt by 1981 if it continued to pay the windfall. Therefore,
legislation was enacted to reduce the costs and make the program
financially viable.
RULING: Congress could properly determine that those who had
acquired entitlement to the retirement benefits while still employed in
the railroad industry had a greater equitable claim to those benefits
than those who became eligible only once they qualified for social
security benefits. The current connection test is not arbitrary and has
been used before.
Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)
The Court declared state laws establishing separate public
schools for black and white students to be unconstitutional.
The decision overturned the Plessy v. Ferguson decision of
RULING: The Court held that the gender classifications made by the
Oklahoma statute were unconstitutional because the statistics relied
on by the state were insufficient to show a substantial relationship
between the statute and the benefits intended to stem from it.
The court instituted a standard, dubbed "intermediate scrutiny",
whereby the state must prove the existence of specific important
governmental objectives, and the law must be substantially related to
the achievement of those objectives.
United States v. Virginia, 518 U.S. 515 (1996)
VMI failed to show "exceedingly persuasive justification" for its
sex-based admissions policy, it violated the Fourteenth
Amendment's Equal Protection Clause.
Romer v. Evans, 517 U.S. 620 (1996)
The Court majority held that the Colorado constitutional
amendment targeting homosexuals based upon animosity
lacked a rational relation to any legitimate governmental
purpose
RULING: The Court concluded that the amendment imposed a special
disability upon homosexuals by forbidding them to seek safeguards
"without constraint". Instead of applying "strict scrutiny" to
Amendment 2 (as the Colorado Supreme Court had done), Kennedy
wrote that it did not even meet the much lower requirement of having
a rational relationship to a legitimate government purpose.
The amendment seems inexplicable by anything but animus toward
the class that it affects; it lacks a rational relationship to legitimate
state interests. It is at once too narrow and too broad. It identifies
persons by a single trait and then denies them protection across the
board. The resulting disqualification of a class of persons from the right
to seek specific protection from the law is unprecedented in our
jurisprudence.
Lawrence v. Texas, 539 U.S. 558 (2003)
The Court struck down the sodomy law in Texas, making samesex sexual activity legal in every U.S. state and territory. The
Court, with a five-justice majority, overturned its previous
ruling on the same issue in the 1986 case Bowers v. Hardwick,
where it upheld a challenged Georgia statute and did not find a
constitutional protection of sexual privacy.
FREEDOM OF SPEECH
Schenck v. United States, 249 U.S. 47 (1919)
The case concerned enforcement of the Espionage Act of 1917.
A unanimous Supreme Court concluded that defendants who
distributed leaflets to draft-age men, urging resistance to
induction, could be convicted of an attempt to obstruct the
draft, a criminal offense In this opinion, Holmes said that
expressions that in the circumstances were intended to result
in a crime, and posed a "clear and present danger" of
succeeding, could be punished.
The most stringent protection of free speech would not protect a man
in falsely shouting fire in a theatre and causing a panic. [...] The
question in every case is whether the words used are used in such
circumstances and are of such a nature as to create a clear and
present danger that they will bring about the substantive evils that
Congress has a right to prevent.
Abrams v. United States, 250 U.S. 616 (1919)
The Court upheld an Amendment to the Espionage Act of 1917,
which made it a criminal offense to urge curtailment of
The Court's clarification stated that this meant that certain areas of
speech "can, consistently with the First Amendment, be regulated
because of their constitutionally proscribable content (obscenity,
defamation, etc.) not that they are categories of speech entirely
invisible to the Constitution, so that they may be made the vehicles for
content discrimination." Thus, as one of the first of a number of
illustrations that Justice Scalia would use throughout the opinion, the
government may "proscribe libel, but it may not make the further
content discrimination of proscribing only libel critical of the
government."
The Court recognized that while a particular utterance of speech can
be proscribed on the basis of one feature, the Constitution may prohibit
proscribing it on the basis of another feature. Thus, while burning a flag
in violation of an ordinance against outdoor fires could be punishable,
burning a flag in violation of an ordinance against dishonoring the flag
is not. In addition, other reasonable "time, place, or manner"
restrictions were upheld, but only if they were "justified without
reference to the content of the regulated speech."
Although the phrase in the ordinance, "arouses anger, alarm or
resentment in others," has been limited by the Minnesota Supreme
Court's construction to reach only those symbols or displays that
amount to "fighting words," the remaining, unmodified terms make
clear that the ordinance applies only to "fighting words" that insult, or
provoke violence, "on the basis of race, color, creed, religion or
gender." Displays containing abusive invective, no matter how vicious
or severe, are permissible unless they are addressed to one of the
specified disfavored topics. Those who wish to use "fighting words" in
connection with other ideas to express hostility, for example, on the
basis of political affiliation, union membership, or homosexuality are
not covered. The First Amendment does not permit St. Paul to impose
special prohibitions on those speakers who express views on
disfavored subjectsLet there be no mistake about our belief that
burning a cross in someone's front yard is reprehensible. But St. Paul
has sufficient means at its disposal to prevent such behavior without
adding the First Amendment to the fire.
Virginia v. Black, 538 U.S. 343 (2003)
The Court struck down that statute to the extent that it
considered cross burning as prima facie evidence of intent to
intimidate. Such a provision, the Court argued, blurs the
distinction between proscribable "threats of intimidation" and
the Ku Klux Klan's protected "messages of shared ideology."
Privacy Act. The Court held the radio station not liable because
the radio station itself did nothing illegal to obtain the tape.
The case stands for the rule that media defendants are not
liable even if a third party violated the law.
Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988)
The First Amendment's free-speech guarantee prohibits
awarding damages to public figures to compensate for
emotional distress intentionally inflicted upon them. The Court
held that the First Amendment gives speakers immunity from
sanction with respect to their speech concerning public figures
unless their speech is both false and made with "actual
malice", i.e., with knowledge of its falsehood or with reckless
disregard for the truth of the statement. Although false
statements lack inherent value, the "breathing space" that
freedom of expression requires in order to flourish must
tolerate occasional false statements, lest there be an
intolerable chilling effect on speech that does have
constitutional value.
Snyder v. Phelps, 562 U.S. 443 (2011)
The Court held that speech on a public sidewalk, about a public
issue, cannot be liable for a tort of emotional distress, even if
the speech is found to be "outrageous" (Westboro Baptist).
United States v. Alvarez, 567 U.S. (2012)
The Court struck down the Stolen Valor Act, a federal law that
criminalized false statements about having a military medal.
"The Act by its plain terms, applies to a false statement made
at any time, in any place, to any person". Such breadth means
that the law is "sweep ing... [the] reach of the statute puts it
in conflict with the First Amendment... the statute would apply
with equal force to personal, whispered conversations within a
home."
Virginia Pharmacy Board v. Consumer Council, 425 U.S. 748 (1976)
The Court held that a state could not limit pharmacists right
to provide information about prescription drug prices. This was
an important case in determining the application of the First
Amendment to commercial speech.
liberties." Brennan dismissed the claim that his decision violated the
Establishment Clause by establishing the Seventh-day Adventist
religion. Finally, the majority opinion did not consider the Equal
Protection argument, since it had already ruled in Sherbert's favor on
First Amendment grounds.
The Court set out a three-prong test for courts to use in determining
whether the government has violated an individual's constitutionallyprotected right to the free exercise of religion.
1. Whether the government has burdened the individual's free
exercise of religion. If government confronts an individual with a
choice that pressures the individual to forego a religious practice,
whether by imposing a penalty or withholding a benefit, then the
government has burdened the individual's free exercise of
religion.
2. However, under this test not all burdens placed on religious
exercise are constitutionally prohibited. If the first prong is
passed, the government may still constitutionally impose the
burden on the individual's free exercise if the government can
show
It possesses some compelling state interest that
justifies the infringement (the compelling interest
prong); and
no alternative form of regulation can avoid the
infringement and still achieve the state's end (the
narrow tailoring prong).
Employment Division of Oregon v. Smith, 494 U.S. 872 (1990)
The Court held that the state could deny unemployment
benefits to a person fired for violating a state prohibition on
the use of peyote, even though the use of the drug was part of
a religious ritual. Although states have the power to
accommodate otherwise illegal acts performed in pursuit of
religious beliefs, they are not required to do so.
HOLDING: But Oregon's ban on the possession of peyote is not a law
specifically aimed at a physical act engaged in for a religious reason.
Rather, it is a law that applies to everyone who might possess peyote,
for whatever reasona "neutral law of general applicability". Scalia
characterized the employees' argument as an attempt to use their
religious motivation to use peyote in order to place themselves beyond
the reach of Oregon's neutral, generally applicable ban on the
possession of peyote. The Court held that the First Amendment's
protection of the "free exercise" of religion does not allow a person to
Amendment I
the states. See alsoRoberts v. United States Jaycees, 468 U.S. 609 (1984), where the
U.S. Supreme Could hold that "implicit in the right to engage in activities
protected by the First Amendment" is "a corresponding right to associate with
others in pursuit of a wide variety of political, social, economic, educational,
religious, and cultural ends."
Amendment II[edit]
Right to keep and bear arms
This right has been incorporated against the states. Described as a
fundamental and individual right that will necessarily be subject to strict scrutiny
by the courts, see McDonald v. City of Chicago (2010). Self Defense is described as
"the central component" of the Second Amendment in McDonald, supra., and
upheld District of Columbia v. Heller 554 U.S (2008) concluding the Fourteenth
Amendment incorporates the Second Amendment right, recognized in Heller, to
keep and bear arms for the purpose of self-defense. The 14th Amendment makes
the 2nd Amendment right to keep and bear arms fully applicable to the States,
see, McDonald vs. City of Chicago (2010). "The right to keep and bear arms must
be regarded as a substantive guarantee, not a prohibition that could be ignored
as long as the States legislated in an evenhanded manner," McDonald, supra..
Amendment III[edit]
Freedom from quartering of soldiers
This provision has been incorporated against the states within the jurisdiction
of the United States Court of Appeals for the Second Circuit, but has not been
incorporated against the states elsewhere.
In 1982, the Second Circuit applied the Third Amendment to the states in Engblom
v. Carey. This is a binding authority over Connecticut, New York, and Vermont, but is
only a persuasive authority over the remainder of the United States.
The Tenth Circuit has suggested that the right is incorporated because the Bill of
Rights explicitly codifies the "fee ownership system developed in English law"
through the Third, Fourth, and Fifth Amendments, and the Fourteenth
Amendment likewise forbids the states from depriving citizens of their property
without due process of law. See United States v. Nichols, 841 F.2d 1485, 1510 n.1
(10th Cir. 1988).
The "problem" is that the third amendment, by and large, is the only one that is
almost never violated by the states and Federal government, almost nobody is
suing over the issue, so very few cases are being heard. The U.S. Supreme Court
has never had a third amendment case appealed to it.
Amendment IV[edit]
Unreasonable search and seizure
This right has been incorporated against the states by the Supreme Court's
decision in Mapp v. Ohio, 367 U.S. 643 (1961), although there is dicta in Wolf v.
Colorado, 338 U.S. 25 (1949), saying the "core" of the Fourth Amendment applied
to the States.
The remedy of exclusion of unlawfully seized evidence, the exclusionary rule, has
been incorporated against the states. See Mapp v. Ohio. In Mapp, the Court
overruled Wolf v. Colorado in which the Court had ruled that the exclusionary rule
did not apply to the states.
Warrant requirements
Amendment V[edit]
Right to indictment by a grand jury
This right has been held not to be incorporated against the
states. See Hurtado v. California, 110 U.S. 516 (1884).
Protection against double jeopardy
This right has been incorporated against the states. See Benton v. Maryland,
395 U.S. 784 (1969).
Constitutional privilege against self-incrimination
This right has been incorporated against the states.[20][21]
Self Incrimination in Court See Griffin v. California, 380 U.S. 609 (1965), Malloy v.
Hogan , 378 U.S. 1 (1964).
Miranda See Miranda v. Arizona, 348 U.S. 436 (1966).
A note about the Miranda warnings: The text of the Fifth Amendment does not
require that the police, before interrogating a suspect whom they have in
custody, give him or her the now-famousMiranda warnings. Nevertheless, the
Court has held that these warnings are a necessary prophylactic device, and thus
required by the Fifth Amendment by police who interrogate any criminal suspect
in custody, regardless of whether he or she is ultimately prosecuted in state or
federal court.
Protection against taking of private property without just compensation
This right has been incorporated against the states. See Chicago, Burlington &
Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897).
Amendment VI[edit]
Right to a speedy trial
This right has been incorporated against the states. See Klopfer v. North
Carolina, 386 U.S. 213 (1967).
Right to a public trial
This right has been incorporated against the states. See In re Oliver,
333 U.S. 257 (1948).
Right to trial by impartial jury
This right has been incorporated against the states. See Duncan v. Louisiana,
391 U.S. 145 (1968), which guarantees the right to a jury trial in non-petty cases.
[22]
See also Parker v. Gladden, 385 U.S. 363 (1966), where the Supreme Court ruled
"that the statements of the bailiff to the jurors are controlled by the command of
the Sixth Amendment, made applicable to the States through the Due Process
Clause of the Fourteenth Amendment. It guarantees that 'the accused shall enjoy
the right to a * * * trial, by an impartial jury * * * [...].'" [22] However, the size of the
jury, as well as the requirement that it unanimously reach its verdict, vary
between federal and state courts. Even so, the Supreme Court has ruled that a
jury in a criminal case may have as few as six members. Williams v. Florida,
399 U.S. 78 (1970). If there are twelve, only nine jurors need agree on a verdict.
Furthermore, there is no right to a jury trial in juvenile delinquency proceedings
held in state court. See McKeiver v. Pennsylvania, 403 U.S. 528 (1971).
Right to a jury selected from residents of the state and district where the crime
occurred
This right has not been incorporated against the states. See Caudill v. Scott,
857 F.2d 344 (6th Cir. 1988); Cook v. Morrill, 783 F.2d 593 (5th Cir.
1986); Zicarelli v. Dietz, 633 F.2d 312 (3d Cir. 1980).
Right to notice of accusations
This right has been incorporated against the states. See In re Oliver,
333 U.S. 257 (1948). See also Rabe v. Washington, 405 U.S. 313 (1972).[22]
Right to confront adverse witnesses
This right has been incorporated against the states. See Pointer v. Texas,
380 U.S. 400 (1965).
Right to compulsory process (subpoenas) to obtain witness testimony
This right has been incorporated against the states. See Washington v. Texas,
388 U.S. 14 (1967).
Right to assistance of counsel
This right has been incorporated against the states. See Powell v.
Alabama 287 U.S. 45 (1932), for capital cases, see Gideon v. Wainwright,
372 U.S. 335 (1963) for all felony cases, andsee Argersinger v. Hamlin,
407 U.S. 25 (1972) for imprisonable misdemeanors.[22] In subsequent decisions,
the Court extended the right to counsel to any case in which a jail sentence is
imposed.
Amendment VII[edit]
Right to jury trial in civil cases
This right has not been incorporated against the states. See Minneapolis & St.
Louis R. Co. v. Bombolis, 241 U.S. 211 (1916) and Pearson v. Yewdall,
95 U.S. 294 (1877)
Re-Examination Clause
This right has not been incorporated against the states. See Minneapolis & St.
Louis R. Co. v. Bombolis, 241 U.S. 211 (1916)[23]
Amendment VIII[edit]
Protection against excessive bail
This right may have been incorporated against the states. In Schilb v. Kuebel,
404 U.S. 357 (1971), the Court stated in dicta: "Bail, of course, is basic to our
system of law, and the Eighth Amendment's proscription of excessive bail has
been assumed to have application to the States through the Fourteenth
Amendment." In Murphy v. Hunt, 455 U.S. 478 (1982), the Court did not reach the
issue because the case was dismissed as moot. Bail was included in the list of
incorporated rights in McDonald footnote 12, citing Schilb.
Protection against excessive fines
This right has not been incorporated. See McDonald v. City of Chicago, footnote
13 (2010).
Reverse Incorporation