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'Incorporation of the Bill of Rights' is the legal doctrine by which portions of the U.S. Bill of Rights are applied to the states through the Due Process Clause of the Fourteenth Amendment. Most of those portions of the Bill of Rights were incorporated by a series of United States Supreme Court decisions in the 1940s, 1950s, and 1960s.
Though the Bill of Rights was originally written to limit only the power of the federal government, the Supreme Court has ruled that most of its guarantees protect citizens against state governments. Some have suggested that the Privileges or Immunities Clause of the Fourteenth Amendment would be a more appropriate textual source of incorporation, but the Privileges or Immunities Clause has not been used to incorporate the Bill of Rights. This has meant that the Due Process Clause was the means by which incorporation occurred.

Contents

Slaughter-House Cases

Origins

Partial versus Total incorporation

Selective incorporation

Which rights have been incorporated?

References

External links

Slaughter-House Cases

It is often said that the ''Slaughterhouse Cases'' "gutted the Privileges or Immunities Clause," and thus prevented its use for applying the Bill of Rights against the states.^[1] However, Justice Hugo Black has pointed out that the ''Slaughter-House Cases'' did not directly involve any right enumerated in the Constitution:

[T]he state law under consideration in the Slaughter-House cases was only challenged as one which authorized a monopoly, and the brief for the challenger properly conceded that there was "no direct constitutional provision against a monopoly." The argument did not invoke any specific provision of the Bill of Rights, but urged that the state monopoly statute violated "the natural right of a person" to do business and engage in his trade or vocation.^[2]

Thus, in Black's view, the ''Slaughterhouse Cases'' should not impede incorporation of the Bill of Rights against the states, via the Privileges or Immunities Clause. Some scholars go even further, and argue that the ''Slaughterhouse Cases'' affirmatively supported incorporation of the Bill of Rights against the states.^[3] In dicta, Justice Miller's opinion in ''Slaughterhouse'' went so far as to acknowledge that the "right to peaceably assemble and petition for redress of grievances ... are rights of the citizen guaranteed by the Federal Constitution," although in context Miller may have only been referring to assemblies for petitioning the federal government.^[4]

Origins

The genesis of incorporation has been traced back to either ''Chicago, Burlington & Quincy Railway Co. v. Chicago'' (1897) in which the Supreme Court appeared to require some form of just compensation for property appropriated by state or local authorities (although there was a state statute on the books that provided the same guarantee) or, more commonly, to ''Gitlow v. New York'' (1925), in which the Court expressly held that States were bound to observe First Amendment free speech protections. Since that time, the Court has steadily incorporated most of the significant provisions of the Bill of Rights. Provisions that the Supreme Court either has refused to incorporate, or whose possible incorporation has not yet been addressed, are the Second Amendment right to bear arms, the Fifth Amendment right to an indictment by a grand jury, the Seventh Amendment right to a jury trial in civil lawsuits, and the Sixth Amendment's implicit command that a criminal jury can consist only of twelve members and must reach a unanimous verdict in order to convict.
Incorporation applies both procedural and substantive guarantees to the states. Thus, procedurally, only a jury can convict a defendant of a serious crime, since the Sixth Amendment jury-trial right has been incorporated against the states; substantively, for example, states must recognize the First Amendment prohibition against a state-established religion, regardless of whether state laws and constitutions offer such a prohibition. The Supreme Court has declined, however, to apply new procedural constitutional rights retroactively against the states in criminal cases (''Stone v. Powell'') with limited exceptions, and it has waived constitutional requirements if the states can prove that a constitutional violation was "harmless beyond a reasonable doubt."
There are, however, some substantive guarantees whose incorporation the Supreme Court has not yet ruled on— for example, the Third Amendment right against quartering soldiers in private homes except in wartime as provided by law.
The Court has declined to take full judicial notice of the clear statements of the original intent for the 14th Amendment as made by the author and sponsor of the bill for the amendment within the US Congress, Rep. John Bingham of Ohio. Bingham disliked the fact that southern states were continuing to violate the rights of Blacks even after the end of the War Between the States (US Civil War), and wished for some means for the Congress to be able to punish the states for such violations. However, he felt that the US Congress was restrained from doing so, since the Supreme Court had previously ruled in the 1833 case ''Barron v. Baltimore'' that the Bill of Rights only limited actions of the federal government, and not those of the states. Therefore, Bingham proposed an amendment to the Constitution which would require the states to honor the immunities and privileges of US citizens as guaranteed within both the body and the Bill of Rights of the US Constitution, and which would also grant to Congress the power to enforce this requirement. The text of the 14th Amendment does not except any of the civil rights of the Bill of Rights from inclusion or incorporation, but rather applies all of the immunities and privileges of the Bill of Rights to the states. The Court, however, has not. See Congressional Globe, 39th Congress, 1st Session, 1866.[1]

Partial versus Total incorporation

In the 1940's and 1960's the Supreme Court gradually issued a series of decisions incorporating several of the specific rights from the Bill of Rights, so as to be binding upon the States.^[5] An alternate school of thought championed by Justice Hugo Black supported that incorporation of specific rights, but urged incorporation of all specific rights instead of just some of them. Black was for so-called mechanical incorporation, or total incorporation, of Amendments 1 through 8 of the Bill of Rights.^[6] Black felt that the Fourteenth Amendment required the States to respect all of the enumerated rights set forth in the first eight amendments, but he did not wish to see the doctrine expanded to include other, unenumerated "fundamental rights" that might be based on the Ninth Amendment. Black felt that his formulation eliminated any arbitrariness or caprice in deciding what the Fourteenth Amendment ought to protect, by sticking to words already found in the Constitution. Although Black was willing to invalidate federal statutes on federalism grounds, he was not inclined to read any of the first eight amendments as states' rights provisions as opposed to individual rights provisions.

Selective incorporation

Justice Felix Frankfurter, however, felt that the incorporation process ought to be incremental, and that the federal courts should only apply those sections of the Bill of Rights whose abridgment would "shock the conscience," as he put it in ''Rochin v. California'' (1952). Frankfurter's incrementalist approach did carry the day, but the end result is very nearly what Justice Black advocated, with the exceptions noted above.

Which rights have been incorporated?

Many of the provisions of the First Amendment were applied to the States in the 1930s and 1940s, but most of the procedural protections provided to criminal defendants were not enforced against the States until the Warren Court of the 1960s, famous for its concern for the rights of those accused of crimes, brought state standards in line with federal requirements. The following list enumerates, by amendment and individual clause, the Supreme Court cases that have incorporated the rights contained in the Bill of Rights. (The Ninth Amendment is not listed; its wording indicates that it "is not a source of rights as such; it is simply a rule about how to read the Constitution." Laurence H. Tribe, ''American Constitutional Law'' 776 n. 14 (2nd ed. 1998). The Tenth Amendment is also not listed; by its wording, it is a reservation of rights to the states.)

★ Amendment I

★
★ 'Establishment of Religion'

★
★
★ ''Everson v. Board of Education'', 330 U.S. 1 (1947).

★
★ 'Free Exercise of Religion'

★
★
★ ''Cantwell v. Connecticut'', 310 U.S. 296 (1940).

★
★ 'Freedom of Speech'

★
★
★ ''Gitlow v. New York'', 268 U.S. 652 (1925).

★
★ 'Freedom of the press'

★
★
★ ''Near v. Minnesota'', 283 U.S. 697 (1931).

★
★ 'Freedom of assembly'

★
★
★ ''DeJonge v. Oregon'', 299 U.S. 353 (1937).

★
★ 'Petition for redress of grievances'

★
★
★ It appears that no one case incorporates this right individually. See ''Edwards v. South Carolina'', 372 U.S. 229 (1963): After listing several First Amendment rights, including redress of grievances, the Court wrote: "It has long been established that these First Amendment freedoms are protected by the Fourteenth Amendment from invasion by the States."

★
★ 'Freedom of association'

★
★
★ ''NAACP v. Alabama ex rel. Patterson'', 357 U.S. 449 (1958): Although the First Amendment lists no "right of association", "Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly."

★ Amendment II

★
★ 'Right to bear arms'

★
★
★ Has ''not'' been incorporated. According to the D.C. Circuit Court of Appeals in the case of ''Parker v. District of Columbia'', "The Second Amendment is one of the few Bill of Rights provisions that has not yet been held to be incorporated through the Fourteenth Amendment." All supreme court jurisprudence on the Second Amendment predates Due Process incorporation doctrine except ''US v Miller'' 307 U.S. 174 (US 1939), which was a challenge to a federal law unrelated to incorporation. Incorporation of Second Amendment was rejected in ''Presser v. Illinois'', 116 U.S. 252 (1886) and ''United States v. Cruikshank'', 92 U.S. 542 (1875). However ''Duncan v. Louisiana'' 391 U.S. 145 (1968), in dicta regarding the interpretation of ''Palko v. Connecticut'' 302 U.S. 319 (1937), indicates that all Amendments dealing with ''"ordered liberty"'' should be regarded as being incorporated according to the majority concurrence by Justice Black.[2]

★ Amendment III

★
★ 'Freedom from quartering of soldiers'

★
★
★ Has ''not'' been incorporated. But ''Griswold v. Connecticut'', 116 U.S. 252 (1965): mentions this right indirectly: ". . . [S]pecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy. . . . The Third Amendment in its prohibition against the quartering of soldiers 'in any house' in time of peace without the consent of the owner is another facet of that privacy."

★ Amendment IV

★
★ 'Unreasonable search and seizure'

★
★
★ ''Wolf v. Colorado'', 338 U.S. 25 (1949): The Court held that although the Fourth Amendment applied to the states, the exclusionary rule (unconstitutionally obtained evidence cannot be used at trial), which the Court had been held to be an essential corollary to the Fourth Amendment, did not. The Court later incorporated the exclusionary rule in ''Mapp v. Ohio'', 367 U.S. 643 (1961).

★
★ 'Warrant requirements'

★
★
★ ''Ker v. California'', 374 U.S. 23 (1963); ''Aguilar v. Texas'', 378 U.S. 108 (1964).

★ Amendment V

★
★ 'Presentment or indictment of grand jury'

★
★
★ Has ''not'' been incorporated. ''Hurtado v. California'', 110 U.S. 516 (1884).

★
★ 'Double jeopardy'

★
★
★ ''Benton v. Maryland'', 395 U.S. 784 (1969).

★
★ 'Self-incrimination'

★
★
★ ''Malloy v. Hogan'', 378 U.S. 1 (1964).

★
★ '''Miranda'' warning'

★
★
★ ''Miranda v. Arizona'', 384 U.S. 436 (1966): The Court held that what is now called the ''Miranda'' warning was an essential corollary to the Fifth Amendment right against self-incrimination and the Sixth Amendment right to assistance of counsel.

★
★ 'Taking of private property'

★
★
★ ''Chicago, Burlington & Quincy Railway Co. v. Chicago'', 166 U.S. 226 (1897). (Strictly speaking, this case appears to have been decided on the basis of the Fourteenth Amendment itself, without recourse to incorporation of the Fifth Amendment. Nevertheless, a number of subsequent cases have cited it for the proposition that the Takings Clause of the Fifth Amendment has been made applicable to the states via the Fourteenth Amendment. E.g., ''Webb's Fabulous Pharmacies, Inc. v. Beckwith'', 449 U.S. 155 (1980).

★ Amendment VI

★
★ 'Speedy trial'

★
★
★ ''Klopfer v. North Carolina'', 386 U.S. 213 (1967).

★
★ 'Public trial'

★
★
★ ''In re Oliver'', 333 U.S. 257 (1948).

★
★ 'Trial by impartial jury'

★
★
★ ''Duncan v. Louisiana'', 391 U.S. 145 (1968): The Court held that in state criminal proceedings, where a person could be sentenced to a significant time in prison, he or she had a right to a trial by jury. However, there is no similar right in juvenile delinquency trials. ''McKeiver v. Pennsylvania'', 403 U.S. 528 (1971).

★
★ 'Unanimous jury verdict'

★
★
★ ''Burch v. Louisiana'', 441 U.S. 130 (1979): The Court has never incorporated the Sixth Amendment's implicit guarantee that convictions be obtained only from unanimous twelve-member juries, but in ''Burch'', the Justices did hold that when as few as six jurors are empanelled, their verdict must be unanimous.

★
★ 'Notice of accusation'

★
★
★ ''Rabe v. Washington'', 405 U.S. 313 (1972).

★
★ 'Confrontation of adverse witnesses'

★
★
★ ''Pointer v. Texas'', 380 U.S. 400 (1965).

★
★ 'Compulsory process to obtain witness testimony'

★
★
★ ''Washington v. Texas'', 388 U.S. 14 (1967).

★
★ 'Assistance of counsel in capital criminal cases'

★
★
★ ''Powell v. Alabama'', 287 U.S. 45 (1932).

★
★ 'Assistance of counsel in all felony cases'

★
★
★ ''Gideon v. Wainwright'', 372 U.S. 335 (1963).

★
★ 'Assistance of counsel in imprisonable misdemeanor cases'

★
★
★ ''Argersinger v. Hamlin'', 407 U.S. 25 (1972).

★
★ '''Miranda'' warning'

★
★
★ (See above.)

★ Amendment VII

★
★ 'Jury trial in civil cases'

★
★
★ Has ''not'' been incorporated. See ''Curtis v. Loether'', 415 U.S. 189 (1974).

★ Amendment VIII

★
★ 'Excessive bail'

★
★
★ Has ''not'' been incorporated. ''Roper v. Simmons'', 543 U.S. 551 (2005), quotes the Eighth Amendment in full, then says, "The provision is applicable to the States through the Fourteenth Amendment." However, the cases cited by the Court do not address bail.

★
★ 'Excessive fines'

★
★
★ ''Cooper Industries v. Leatherman Tool Group, Inc.'', 532 U.S. 424 (2001).

★
★ 'Cruel and unusual punishment'

★
★
★ ''Robinson v. California'', 370 U.S. 660 (1962).

References

1. See Pilon, Roger. "Lawless Judges: Refocusing the Issue for Conservatives," ''Georgetown Journal of Law and Public Policy'' Volume II, page 21 (2000).
2. Adamson v. California, 332 U.S. 46 (1947) (Black, J., dissenting).
3. See Wildenthal, Bryan. “The Lost Compromise: Reassessing the Early Understanding in Court and Congress on Incorporation of the Bill of Rights in the Fourteenth Amendment". ''Ohio State Law Journal'', Vol. 61 (2000).
4. ''Slaughter-House Cases'', 83 U.S. 36 (1873).
5. Steffen W. Schmidt, Mack C. Shelley, Barbara A. Bardes: ''American Government and Politics Today'', Page 71. Thomson Wadsworth, 2004.
6. Amar, Akhil Reed: ''The Bill of Rights: Creation and Reconstruction '', Page 234. Yale University Press, 1998


★ P.A. Madison's A Dummies Guide to Understanding the Fourteenth Amendment

★ J. Lieberman (1999). ''A Practical Companion to the Constitution.'' Berkeley: University of California Press.

★ Regina McClendon, Public Law Research Institute (1994) (stating that "[t]he almost total incorporation of the Bill of Rights lends support to the theory that incorporation of the Second Amendment is inevitable").[3]

★ ''American Jurisprudence'', 2d ed., "Constitutional Law" § 405.

★ Ernest H. Schopler, ''Comment Note—What Provisions of the Federal Constitution's Bill of Rights Are Applicable to the States'', 23 L. Ed. 2d 985 (Lexis).

External links

★ A First Amendment incorporation chart