Learning Objective 5.1

L.O.- Trace the constitutional roots of civil liberties

• Anti-Federalists feared that the national government would have too much power, so they decided that they wanted a Bill of Rights to ensure that the freedoms already granted to citizens would uphold.
• Federalists opposed a Bill of Rights because of three reasons:
1. It is unnecessary because the country is founded on the idea of popular sovereignty and inalienable, natural rights. 
2. A bill of rights would be dangerous because the government has enumerated powers so why would there need to be a bill that says what the government can't do even though they don't have the power to do it.
3. It would be impractical to enforce. Its validity would rely on public opinion and the spirit of the people and the government.
• Soon, James Madison proposed that he would support the Bill of Rights in order to gain a seat in the House of Representatives, and quickly a draft of the Bill of Rights was made.
• A proposed Bill of Rights was sent to the states for ratification in 1789.

• By 1791, most of the provisions had been approved by the states.

• The Bill of Rights:
• The first 10 amendments to the U.S. Constitution which guarantees specific rights and liberties.
• The ninth and tenth amendment note that the Bill of Rights is not exclusive.
• The ninth amendment: makes it clear that having enumerating rights in the Bill of Rights or Constitution does not mean that other rights do not exist.
• The tenth amendment: defines the basic principle of American federalism in stating that the powers not delegated to the national government are reserved to the states or to the people.

Incorporation Doctrine

• The Bill of Rights was intended to limit the power of the national government; but in 1868, the fourteenth amendment says that the Bill of Rights will apply to the states as well.

• Due process clause: clause contained in the 5th and 14th amendment that guarantees a variety of rights to individuals.
• Substantive due process: a judicial interpretation of the 5th and 14th amendments' due process clause  that protects citizens from arbitrary or unjust state or federal laws.
• Incorporation doctrine: holds that the due process clause requires that state and local governments must also guarantee the rights stated in the Bill of Rights.

Selective Incorporation and Fundamental Freedoms

• Selective incorporation: judicial doctrine whereby most but not all of the protections in the Bill of Rights are made applicable to the states via the 14th amendment.
• Fundamental freedoms: rights defined by the Supreme Court to be essential to order, liberty, and justice and therefore entitled to the highest standard of review.