Incorporation: how the Bill of Rights came to bind the City of Williams

The Bill of Rights was written to limit Congress, not states or cities. This lesson shows how the Fourteenth Amendment changed that, one right at a time, and how a resident sues a city that violates one.

Before 1868: Barron v. Baltimore

The Fifth Amendment's takings rule "is intended solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the states" (Barron v. Baltimore, 32 U.S. 243 (1833)) Verified1. So in 1833 a city could take property without paying, as far as the federal Constitution was concerned.

The Fourteenth Amendment

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. 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.

Source: National Archives transcription Verified2

Full lesson: Fourteenth Amendment.

How the Court decided, right by right

• 1925, Gitlow: "we may and do assume that freedom of speech and of the press ... are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States" (Gitlow v. New York, 268 U.S. 652 (1925)) Verified3.
• 1937, Palko: rights "implicit in the concept of ordered liberty" apply to the states (Palko v. Connecticut, 302 U.S. 319 (1937)) Verified4.
• 1968, Duncan: "trial by jury in criminal cases is fundamental to the American scheme of justice" (Duncan v. Louisiana, 391 U.S. 145 (1968)) Verified5.
• 2010, McDonald: the Fourteenth Amendment "makes the Second Amendment right to keep and bear arms fully applicable to the States" (McDonald v. Chicago, 561 U.S. 742 (2010)) Verified6.
• 2019, Timbs: "With only 'a handful' of exceptions, this Court has held that the Fourteenth Amendment's Due Process Clause incorporates the protections contained in the Bill of Rights" (Timbs v. Indiana, 586 U.S. 146 (2019)) Verified7.

What binds Williams

Our reading: the gaps rarely matter in Williams, because California's constitution supplies its own versions, such as the civil jury right in Article I, §16 Verified8.

Why a city counts as "the State"

"Municipal corporations are political subdivisions of the state, created as convenient agencies for exercising such of the governmental powers of the state as may be intrusted to them" (Hunter v. City of Pittsburgh, 207 U.S. 161 (1907)) Verified9. When the Williams council passes an ordinance or an inspector knocks, the state is acting through them.

Suing a city: §1983 and Monell

"Local governing bodies (and local officials sued in their official capacities) can, therefore, be sued directly under § 1983 for monetary, declaratory, and injunctive relief in those situations where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted" (Monell v. Department of Social Services, 436 U.S. 658 (1978)) Verified10. A state itself is not a "person" under §1983 (Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989)) Verified11; a city is.

Our reading: an ordinance is official policy by definition. A claim that a Williams ordinance itself violates a right is the clearest kind of §1983 claim against the city; a claim about one employee's act needs more.

California's own rights, side by side

California didn't need incorporation; its Declaration of Rights binds its cities directly. Many rights appear twice:

Table source: Verified8

See the four Article I lessons.

Check yourself

Pick an answer for each question. You will see right away if it is right, and why.