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Chapter 4

POLISCI 101 Chapter Notes - Chapter 4: Equal Rights Amendment, Equal Protection Clause, Nationalization

Political Science
Course Code
Raymond La Raja

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Chapter 4:
Civil Liberties and Civil Rights
The first 10 amendments of the U.S Constitution (called the Bill of Rights; BOR) are the basis
for the freedoms that we enjoy as American citizens. The provisions that were incorporated into
the BOR were seen as defining a private sphere of personal liberty, free of governmental
As TJ puts it, a bill of rights “is what people are entitled to against every government on earth”.
They are similar to civil liberties, which are the protections of citizens from improper
government action.
Civil rights are obligations to guarantee equal citizenship and protect citizens from
discrimination. They are the legal or moral claims that citizens are entitled to make on the
government. These rights regulate who can participate in the political process and civil society
and how they can participate: (ex- who can vote, who can hold office, etc.)
Although the United States began life as a nation with numerous civil rights guaranteed in both
federal and state constitutions, the Constitution did not originally guarantee a general right to
vote: it left voting and many other civil rights to the states. The Founders’ initial rules permitted
widely disparate treatment of different categories of individuals, including women and different
racial groups. The greatest restrictions on civil rights at the time of the Constitution was on
African Americans. Eight of the 13 colonies permitted slavery and slaves possessed virtually no
civil rights.
Post the Union victory in the Civil War, Congress adopted the 13th, 14th and 15th amendments to
the Constitution to protect civil rights that had been violated by slavery.
1. The 13th amendment prohibited slavery and involutunary servitude in the United States.
2. The 14th amendment asserted that the idea of civil rights was for all the US citizens.
3. The 15th amendment extended the right to vote to blacks.
The equal protection clause:
“All persons born or naturalized in the United States (and its jurisdictions), are citizens of the
United States and of the State wherein they reside. 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

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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.”
This equal protection clause has transformed civil rights in the United States. It has created the
foundation for asserting equal civil rights for all people.
Civil Liberties: Nationalizing the Bill of Rights
The First Amendment states that “Congress shall make no law respecting an establishment of
religion, or abridging freedom of speech…” But this is the only part of the BOR that exclusively
addresses the national government. For example, The Second Amendment states that “the right
of the people to keep and bear Arms shall not be infringed”.
Because the First Amendment is the only part of the Bill of Rights that explicit limits the
national government, a fundamental question arises: Do the remaining parts put limits on state
governments or only on the national government?
Dual Citizenship:
The question of whether the BOR also limits state governments was settled in 1833 in the case of
Barron vs. Baltimore. In paving its streets, the city of Baltimore had disposes of so much sand
and gravel in the water near John Barron’s wharf that the wharfs value for commercial purposes
was virtually destroyed.
Barron brought the city into court on the grounds that it had, under the grounds that it had, under
the 5th amendment, “unconstitutionally deprived him of his property without just compensation”.
However, he was told that if an agency of the national government had deprived Barron of his
property, he would have won the case hands down. However, the constitution of Maryland had
no such provision protecting its citizens from such action, then Barron had no legal leg to stand
on against Baltimore, an agency of the state of Maryland.
Barron vs. Baltimore confirmed the “dual citizenship” law: Each American was a citizen of
the national government and separately a citizen of one of the states. That means that the BOR
did not apply to decisions / procedures of the state or local governments. Per this law, even
slavery could continue, because the BOR could not protect anyone from state laws treating
people as property.
In fact, the BOR did not become a vital instrument for the extension of civil liberties for anyone
until after a bloody Civil War and a revolutionary 14th Amendment intervened.

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The 14th Amendment:
From a constitutional standpoint, the defeat of the South in the Civil War settled one question
and raised another. It settled the question of whether secession was an option for any state. After
1865, there was more “united” than “states” to the United States.
But despite this, it was unanswered how much the states were obliged to obey the Constitution
and, in particular, the Bill of Rights. The wording of the 14th Amendment suggests that it was
almost perfectly designed to impose the BOR on the states (and thereby to reverse Barron vs.
Consider the amendment’s very first words: “All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens of the United States and of the State
wherein they reside.” This statement provides for a single national citizenship. At a minimum,
that means that civil liberties should not vary drastically from state to state.
This interpretation of the 14th Amendment is reinforced by the next clause:
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.”
All of this sounds like an effort to extend the entire BOR to citizens wherever they might reside,
But this was not to be the Supreme Court’s interpretation for nearly 100 years. Within five years
of ratification of the 14th Amendment, the Court was making decisions as though it had never
been adopted.
This following table shows the major developments in the history of the 14th Amendment, citing
particular provisions of the BOR incorporated into the Constitution (per the 14th amendment).
This is a measure of the degree of “nationalization” of civil liberties:
Selected Provisions and Amendments
Date “Incorporated
Key Cases
Eminent domain (V)
Chicago, Burlington and Quincy Railroad vs.
Freedom of speech (I)
Gitlow vs. New York
Freedom of the press (I)
Near vs. Minnesota ex rel. Olson
Free exercise of religion (I)
Hamilton vs. Regents of the University of
Freedom of assembly (I)
De Jonge vs. Oregon
Freedom from unnecessary search and
seizure (IV)
Wolf vs. Colorado
Freedom from warrantless search and
seizure (“exclusionary rule”) (IV)
Mapp vs. Ohio
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