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The Significance of Selective Incorporation in U.S. Government Rights

Explore how Selective Incorporation shaped the Bill of Rights, impacting citizen freedoms. Learn about landmark cases and the evolving interpretation of fundamental rights at all government levels.

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The Significance of Selective Incorporation in U.S. Government Rights

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  1. POLI 101: U.S. Government Dr. Kevin Lasher

  2. The freedom of a citizen to exercise basic rights, as of speech, religion or assembly, without unwarranted or arbitrary interference by the government.

  3. Bill of Rights • First ten amendments (changes) to the Constitution • BOR was “price” paid to Anti-Federalist forces • Freedom of speech, press, religion, right to lawyer, no cruel and unusual punishment, etc. • Congress shall make no law … • Did not apply to state governments until 20th century (selective incorporation)

  4. Bill of Rights Citizens National Government

  5. Barron v. Baltimore (1833) Confirmed that Bill of Rights only applied to national government and did not apply to state governments

  6. Bill of Rights 14th Amendment Selective Incorporation Making Bill of Rights apply to all levels of government

  7. 14th Amendment (1868) “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.”

  8. 14th Amendment • Two goals: • Citizenship rights for freed slaves • Use 14th Amendment to “nationalize” BOR • #2 is still debated by scholars today

  9. Selective Incorporation 20th century process of finally “nationalizing” the BOR A very big deal

  10. Selective Incorporation • Gitlow v. New York (1925) --- incorporates freedom of speech and press • “For present purposes we may and do assume that freedom of speech and of the press-which are protected by the First Amendment from abridgment by Congress-are among the fundamental personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the States.”

  11. Selective Incorporation • Supreme Court has confirmed the process of selective incorporation (some disagreement from legal scholars) • McDonald v. Chicago (2010) incorporates 2nd Amendment and shows that conservative court accepts doctrine of incorporation • Still a few parts of BOR that have not been nationalized (3rd Amendment, right to grand jury, no excessive bail) • Selective incorporation is a “done deal”

  12. Bill of Rights/Selective Incorporation Government Citizens National Government

  13. Bill of Rights • None of these rights are ABSOLUTE • Supreme Court has spend a great deal of time trying to figure out the definitions and limits of these rights

  14. Freedom of Religion

  15. Freedom of Religion “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof …” • Applies to national, state and local governments (selective incorporation)

  16. Freedom of Religion • Free exercise of religion • Establishment of religion While the Supreme Court has generally viewed religious freedom as these two separate components, there is certainly a degree of overlap between the two.

  17. Free Exercise of Religion: Today All religious groups/individuals should have the rights of free exercise All religious groups/individuals are free to believe anything (government may not interfere in beliefs, even if it could) All religious groups/individuals are free to practice their religion in most circumstances Religious belief is off limits; religious actions may be prevented under VERY SPECIAL CIRCUMSTANCES

  18. Free Exercise of Religion Clearest (if most extreme) example is the prohibition of human sacrifice NOT FREE to blow up abortion clinics NOT FREE to commit robbery and give everything to the poor NOT FREE to stone my wife if she committed adultery NOT FREE to do “anything at all” in the name of your religion

  19. Free Exercise of Religion Laws/interest of society vs. Religious Actions

  20. Freedom of Religion Laws supercede religious actions, when there is a conflict Government CAN limit religious freedom if religious actions violate laws or pose a threat to society 95% (or more) of religious actions are “off limits” Relatively small subset of religious actions which conflict with national/state laws or policies Citizens are free to believe anything and do “almost anything” in religious matters

  21. Reynolds v. United States (1879) • Mormons practice polygamy since 1852 (or earlier) • Polygamy outlawed in federal territories (like Utah) in 1862 • George Reynolds, member of Mormon Church hierarchy, arrested for two legal wives • Reynolds argued he was exempt from law because of his religious beliefs • Supreme Court disagreed and upheld his conviction Before selective incorporation

  22. Reynolds v. United States (1879) “Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.” “…we think it may safely be said there never has been a time in any State of the Union when polygamy has not been an offence against society, cognizable by the civil courts and punishable with more or less severity. In the face of all this evidence, it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life.”

  23. Reynolds v. United States (1879) “So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and, in effect, to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.”

  24. Reynolds v. United States (1879) Religious actions (like polygamy) may be restricted, prevented or punished IF they conflict with the laws or interests of society Potentially – a fair amount of religious actions may be restricted by government Next century saw a process of “refining” and “limiting” the ability of government to restrict the free exercise of religion

  25. Free Exercise of Religion Laws trump illegal or “dangerous” religious actions But are there situations where free exercise claims should win out over secular laws? Should a religious group be given an “exemption” from a law that applies to everyone else? If so, when? And how do we balance the competing claims of enforcing the laws and protecting religious freedom?

  26. Free Exercise of Religion Should I be forced to fight in a war if I am a pacifist based on my religious beliefs? DRAFT

  27. Free Exercise of Religion Can I use an illegal hallucinogenic drug based on a centuries-old practice of interacting with my God?

  28. Free Exercise of Religion Can I be forced to send my children to school beyond an age that my religion teaches is improper, if required to do so by the government?

  29. Free Exercise of Religion More interaction in “modern society” More concern about rights

  30. THE END

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