4.2 Discussion: Due Process and the Incorporation Doctrine-

Review the clauses of the 14th Amendment.

Questions to think about before answering:

1. What is the concept/theory of Due Process and why is it required under the 14th? 

2. What did the Supreme Court "discover" in Gitlow v. New York regarding fundamental rights? 

3. Review the Palko Test established in Palko v. Connecticut.

4. Understand how the concepts of Selective Incorporation was conceived.

Gitlow- "Discovering" Rights

Gitlow v. New York (1925)-  The Supreme Court finds that the Freedom of Speech is a Fundamental Right and must be protected... even though Gitlow's conviction was upheld.  In Gitlow, the Supreme Court begins the Theory of Incorporation.

[W]e 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 rights and “liberties” protected by the Fourteenth Amendment from impairment by Congress.

Palko Test

Palko v. Connecticut (1937)-Frank Palko had been charged with first-degree murder. He was convicted instead of second-degree murder and sentenced to life imprisonment. The state of Connecticut appealed and won a new trial; this time the court found Palko guilty of first-degree murder and sentenced him to death.  Palko appealed to the Supreme Court that he has suffered "Double Jeopardy" and could not be put to death.  The Supreme Court ruled that yes, ... some rights are fundamental and MUST be incorporated into the states...but double jeopardy was not a fundamental right.  Palko was put to death.

Incorporation and the Palko Test

Justice Cardozo and the Palko Test:

The Supreme Court faced the question of which Federal rights are “absorbed” in the Due Process Clause. (Which rights are fundamental rights- what is the test we must use?)

•  A Right is absorbed if and only if it is “implicit in the concept of ordered liberty”
•  “so rooted in the traditions and conscience of our people as to be ranked as fundamental”
• such that “a fair and enlightened system of justice would be impossible without [it].”

When a right or procedure meets the standard of the Palko Test, it must be incorporated into the states.

The Palko Test is used to implement Selective Incorporation.  If a right meets the Palko Test, then it must be incorporated into the states as fundamental to ordered liberty.

Discussion Questions:

How do the Supreme Court holdings in Gitlow and Palko establish the need for Incorporation? (facts of the case are not necessary, but can be included)

Using the theories of Due Process and the clauses of the 14th Amendment,  how does the Supreme Court know which rights must be incorporated into the states?

Each student is required to post a 200 word response to the question.

The student then must post at least a 100 word response to at lease two other student posts

Please review How to participate and answer a Discussion Question for specifics on how to post to this discussion to get full credit.