The Bill of Rights is not only included with the United States Constitution but
The Bill of Rights is not only included with the United States Constitution but also state constitutions. All states have provisions in their constitutions that protect individual rights. Go online and look up your state NJ constitution concerning amendments that are included in the Bill of Rights. How does your state constitution protect your individual rights? Be sure to make connections between your ideas and conclusions and the research, concepts, terms, and theory we are discussing this week. Week 7 Mini-Lecture: Without Due Process of Law A central issue of our rights is what they mean in practice---whether government will take the steps necessary to make sure that people in fact can enjoy their rights. Take the case of Clarence Gideon. He was on trial in Florida in 1961 for allegedly breaking into a pool hall and stealing a pocketful of change. Gideon had no money. And when he came up for trial, he asked the judge to provide him a lawyer. The judge refused. Gideon, an eighth-grade dropout, was forced to defend himself. He lost his case. The Florida judge sentenced him to five years in prison---the maximum allowable for the crime of which he was accused. While in jail, Gideon wrote a handwritten note to the Supreme Court, appealing his conviction. The likelihood that the court would respond to such a note was almost infinitesimal. The court hears less than 100 cases a year out of the tens of thousands that are heard annually in federal court, and they've almost never taken a case on the basis of a handwritten note. To everyone's surprise, the Supreme Court said, “we're going to hear this case.” They provided Gideon with an attorney. And when his case came before the Supreme Court, his attorney argued that the right to counsel is fundamental. How, he asked, can a poor individual like Gideon possibly win out in a trial against a trained district attorney? In rebutting that argument, the state of Florida said that its judges were fair minded and wouldn't let anything but the evidence decide the outcome of a case. The Supreme Court disagreed with Florida. It said that the 14th amendment due process protection included the right to an attorney and at government expense if the accused was too poor to afford a lawyer. In his retrial in Florida, Gideon's lawyer expertly picked apart the state's case. He showed convincing evidence that its main witness had actually been part of the crime, acting as a lookout while his friends broke into the pool hall. The jury acquitted Gideon of the crime of which he was accused. He was a free man. In the Gideon case, the U.S. Supreme Court overturned the ruling of a state court. There was a time in American history where that type of decision was prohibited. That's because the Bill of Rights initially applied only to the national government. The First Amendment, for instance says, Congress shall make no law abridging freedom of speech, the press, and so on. It doesn't say Congress and the state legislatures shall make no law. Thus, whereas Congress was bound by the Bill of Rights, state governments were not. Today, nearly all the rights in the Bill of Rights are protected from action not only by the federal government, but also by the state governments and the local governments, which are agents of the state. The key to this change was the 14th Amendment, which was ratified after the Civil War. It reads, in part, "No state shall deprive any person of life, liberty, or property, without due process of law." Notice that the 14th Amendment refers to life, liberty, or property. It doesn't say that no state shall deprive any person of freedom of speech or any other specific right listed in the Bill of Rights. And it was not until 1925, nearly six decades after the 14th Amendment was ratified, that the Supreme Court began to say what was meant by life, liberty, or property. The breakthrough case was Gitlow vs. New York. It involved a man, Benjamin Gitlow, who had been convicted of violating a New York state law aimed at silencing political anarchists. In its ruling, the Supreme Court held that state governments are not completely free to decide for themselves what their residents may legally say. The 14th Amendment's due process clause, said the court, protects free speech from action by the states. Then, during the next dozen years, the Supreme Court used the 14th Amendment to strike down state laws infringing on the remaining First Amendment rights-- freedom of the press, religion, assembly, and petition. At this point, the Court stopped, choosing not to protect the other rights in the Bill of Rights from state action. Then, in the 1960s and early 1970s, it resumed the process, one by one, bringing most of the fair trial rights in the Bill of Rights into the 14th Amendment. The Gideon case, the right to an attorney, was one of those landmark rulings. Other rulings addressed such rights as the “right to remain silent” which I hope you’re more familiar with via TV and movies than your own experiences with law enforcement. This process, whereby rights contained in the Bill of Rights are extended to the state governments by the 14th Amendment, is called “selective incorporation.” It is selective because only particular rights in the Bill of Rights are given protection, and it's called incorporation because the process involves incorporating or bringing into the 14th Amendment rights that are contained in the Bill of Rights, thus protecting them from state action. In the Gideon case, for example, the Sixth Amendment right to an attorney, which protects citizens from action by the federal government, was incorporated into the 14th Amendment, thereby extending the right to an attorney to cases involving state and local governments. Selective incorporation is one of the most important developments in the history of American civil liberties. Think about it for a minute. Which level of government is more likely to violate your rights? Is it the federal government, or is it state and local governments? Although many Americans are more distrustful of the federal government, the state and local governments are actually more likely to intrude on your rights. Well, over 95% of the court cases alleging a violation of constitutional rights originate with state and local governments. The major reason is that these officials have primary responsibility for policing and for maintaining public order, precisely the situations where citizens are most likely to come into conflict with authorities. Have you ever been stopped by a federal officer, such as an FBI agent? Probably not. Not many Americans have. But have you ever been stopped by a local police officer or the state highway patrol? Well, if you drive a car there's a good chance you have. That's why the 14th Amendment and the Supreme Court's application of it to the actions of the states and localities has been so key in protecting Americans' rights: they’re who you interact with more often---and if you do have an interaction, you’re going to want those rights protected without having to ask what level of government they’re from.

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