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Incorporation of the Bill of Rights

From Wikipedia, the free encyclopedia

In United States constitutional law, incorporation is the doctrine by which portions of the Bill of Rights have been made applicable to the states. When the Bill of Rights was ratified, the courts held that its protections extended only to the actions of the federal government and that the Bill of Rights did not place limitations on the authority of the state and local governments. However, the post–Civil War era, beginning in 1865 with the Thirteenth Amendment, which declared the abolition of slavery, gave rise to the incorporation of other amendments, applying more rights to the states and people over time. Gradually, various portions of the Bill of Rights have been held to be applicable to state and local governments by incorporation via the Due Process Clause of the Fourteenth Amendment of 1868.

Prior to the ratification of the Fourteenth Amendment and the development of the incorporation doctrine, the Supreme Court in 1833 held in Barron v. Baltimore that the Bill of Rights applied only to the federal, but not any state, governments. Even years after the ratification of the Fourteenth Amendment, the Supreme Court in United States v. Cruikshank (1876) still held that the First and Second Amendment did not apply to state governments. However, beginning in the 1920s, a series of Supreme Court decisions interpreted the Fourteenth Amendment to "incorporate" most portions of the Bill of Rights, making these portions, for the first time, enforceable against the state governments.

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Transcription

♪ MUSIC ♪ I'm gonna talk today, our first round, about a fairly complex issue, but one that I hope you'll find interesting. It's the doctrine of incorporation. I'm gonna set the stage with a story; we're gonna back in time, pre-Civil War, John Marshall is Chief Justice of the United States, and a guy in Baltimore named John Barron who has an interest, an economic interest, in a wharf. Baltimore's a major, major port city in the United States, still is, but was of even greater significance in the 1830s. And the city of Baltimore... So the wharf is a big business, but the city of Baltimore is growing and, as often happens, interests collide. The city of Baltimore, as it's building new buildings, has to put the dirt somewhere so they dump it in the harbor; the harbor becomes shallower; Barron and his associates discover that no longer can the ships requiring deep draft access his wharf, they're losing business; and so they do what we do in this country: they sue. And the case goes up through the state court system and, uh, Barron's unsuccessful, eventually files a lawsuit or appeals the high state court decision to the Supreme Court of the United States, which in those days could take jurisdiction over an appeal from a state court under Section 25 of the 1789 Judiciary Act that we talked a bit about yesterday and that Justin's mentioned today, if a federal issue were involved but if there weren't then the court couldn't take jurisdiction over the appeal. So the issue in Barron vs. Baltimore, the case that the Supreme Court decided in 1833, was: did the Court have jurisdiction? And the basis of the claim, of John Barron's claim, was Yeah, you have jurisdiction because, because these guys in Baltimore, and Baltimore's a part of the state of Maryland, took my property, the economic advantage of my wharf, for a public purpose without paying me just compensation. It's a violation of what we call the Takings Clause of the 5th Amendment. And sure enough, the 5th Amendment says that there shall be no taking of property without just compensation. And so Barron just wanted to get paid for the loss in value of his wharf. And the Supreme Court then had to say, "Well, you know, first of all: eventually we'd have to decide, we the court, if there's a taking; but before we get there, we have to decide is Maryland or Baltimore or anybody who's not the federal government liable for a violation of the 5th Amendment, even potentially? Who does the 5th Amendment apply to? It doesn't say it just applies to the federal government, um, but maybe it does. So this is the Barron vs. Baltimore decision of 1833. And what the Supreme Court decided in that decision was that, as a historical matter, the Bill of Rights provisions had been attached to the Constitution, generated by the 1st Congress and attached to the Constitution in order to restrict the acts of the federal government. They were there because the Anti-Federalists, the people who were a bit anxious about the grant of too much power to the federal government, weren't prepared to endorse the Constitution unless there were some immediate safeguard attached. And that took the form of the Bill of Rights. The first eight amendments to the Constitution and then the 9th Amendment that says, And this list isn't exclusive; and then the 10th Amendment that says, And the people and states retain rights too, right? And retain powers. So, so that's why it's there, said John Marshall, it wasn't there to keep the- to check the activities of the states; so we hold, Barron vs. Baltimore, that the provisions of the Bill of Rights, even though they don't explicitly say so – 1st Amendment does, says "Congress shall pass no," but all the rest of them – apply only to the government of the United States. So, huge decision in its consequences, because essentially from 1833 forward, the states were immunized from any sort of direct responsibility under the Bill of Rights provisions. Uh, free speech, to the federal Constitution; free speech, you're a state, who cares. At least as far as the federal Constitution's concerned. Infringement of free exercise of religion? You're a state, who cares. Establishment of a church? You're a state, who cares. You're not subject to those provisions. Now, to be fair, the states had their own constitutions, and those constitutions included Bills of Rights, so provisions that were enforceable in state courts, but they weren't identical to the federal provisions and the federal provisions were enforceable. And you couldn't enforce the state provisions in federal court. So maybe you were a little more anxious about getting your state court system to enforce your state court rights against the state. Maybe you'd rather go to a federal court, but you couldn't after Barron vs. Baltimore because the federal constitutional provisions didn't apply and the state constitutional provisions weren't enforceable in state courts because they didn't raise federal issues, susceptible of adjudication on appeal under Section 25 of the 1789 Judiciary Act. Alright, so that's the rule right up until the Civil War. Civil War comes and it's a mess, and the war finishes and we get three new Amendments to the Constitution. We've had the first ten, we talked about those, the 11th is state sovereign immunity, the 12th is to clean up the mess created by the Presidential election of 1800. And then Constitution sits quiet for a while until the Civil War. The Civil War produces three Amendments; we call them the Reconstruction Amendments or the Civil War Amendments, Amendments 13, 14, and 15. 13 abolishes slavery. 14th Amendment does a pile of stuff: it takes care of the Confederate debt issue and all sorts of things we don't really care so much about anymore, but it also includes the Equal Protection Clause that we're gonna talk about later, and the Due Process Clause, and I'm gonna talk about a little bit momentarily. And then the 15th Amendment which says that states can't infringe the right to vote on account of race, which becomes important in the 1960s. Now... So that's Barron vs. Baltimore, then we have the Civil War Amendments, which reshaped the federal structure a little bit by imposing, in the form of the 14th and 15th Amendments, direct limitations on the states. Uh, I should have mentioned in greater detail the 14th Amendment... But I will momentarily. The 14th Amendment begins with "No state shall..." the material provisions that we're gonna talk about in a minute. And what that did was to cause people to start rethinking this notion of the application of the Bill of Rights to the states. Nothing really happens so much in the closing years of the 19th century on this issue. There were new provisions to try to enforce; there's a new Privileges and Immunities clause that appears and applies to states, we can- we'll see what that means, um, slaughterhouse cases that were discussed yesterday were the result; there's an equal protection clause, maybe we want to play with that a little bit and see what it does, again it's directly enforceable against the states. But then we hit the 1920s and things started to change dramatically on this issue of whether the Bill of Rights applied to the states. The precipitating case, the case generally credited with starting this movement, is a case called Gitlow vs. New York. Benjamin Gitlow, a member of the New York Assembly, was a member of the Socialist party too. And in 1920, he was charged with having violated the state of New York's Anarchy Law that had been passed after President William McKinley's assassination in New York. The Criminal Anarchy Law prohibited, among other things, the dissemination of radical or incendiary literature, and what Gitlow had done was to publish a tract- sort of a pro-socialist tract. And in 1919, right after the end of the First World War, he was arrested for violation of the state Criminal Anarchy Law. State courts found him guilty, sent him to jail, to Ossining or Sing Sing State Prison. He sat, cooled his heels there for several years before eventually he got the federal courts to take a look at his sentence, and the case went to the Supreme Court, and the threshold question they had to answer was essentially the Barron vs. Baltimore question, because Gitlow's claim was: This is a violation of my free speech rights. And the state of New York said, We don't have free speech rights that go that far under the state constitution, we've already figured that out, and the state of New York is not responsible to you under the federal constitution's free speech clause; that's in the 1st Amendment, doesn't apply to the states, citation Barron vs. Baltimore 1833, the guy with the wharf, so you're going back to jail, Mr. Gitlow. And the Supreme Court sat down and thought about it, and eventually decided, You know, maybe we're in a different world. Maybe that world of 1833 has been changed in some fundamental way by the Civil War or the reshuffling of the federal-state relations, and most specifically by the passage of the 14th- or the adoption of the 14th Amendment. Because the 14th Amendment says, and this is the material language, "No state shall deprive any person of life, liberty, or property without due process of law." Now, what does liberty mean in that context? You could do an originalist's analysis of liberty and go back to- you won't find an answer. Alright, this is- we talked a little bit yesterday and we will again about the problems of doing originalist research. It's not clear exactly what "liberty" was supposed to include. And what the Supreme Court did in the Gitlow case in its 1925 decision was to say, "Well, we think that liberty includes at least the right to speak freely. So, so we think that New York is subject to free speech limitations; not directly, under the 1st Amendment, but because the word 'liberty' in the 14th Amendment, which does apply to the states, includes a free speech component." Now, what we came later to call this process is Incorporation. So that free speech language – free speech is a right protected under the 1st Amendment – incorporates into the Due Process Clause of the 14th Amendment. It's a part of the liberty that you can't be, that we can't be, deprived of without due process of law, which had happened, potentially, in this case, so the Supreme Court can hear it. Now, this is a big shift. And of course it creates a platform for asking the question, "Well, what other rights protected under the Bill of Rights incorporate into the Due Process Clause of the 14th Amendment and so are enforceable against the states? Let's roll up our sleeves and see!" Now, you may want to know what happened to Mr. Gitlow. This is 1925, um, free speech claim, we can hear it; what did you do? Socialist literature?! You're going back to jail! (laughs) So they found that his free speech rights had not been violated; they sent him back to prison where Governor Al Smith eventually pardoned him thinking that he had learned his lesson, which may have been true. But we had a new principle established: this principle of incorporation. The court wrestled with it for a little while; well, what incorporates and what doesn't? Some Justices thought that all of the Bill of Rights provisions ought to be found to incorporate, and nothing else. Some of them thought that all of them ought to incorporate, and other things ought to incorporate as well. Other unenumerated rights. But eventually the court opted for something we call Selective Incorporation, which is: we'll do this one at a time. We'll apply a test to determine whether an individual right ought to incorporate, whether it's within the Bill of Rights or outside the Bill of Rights; we're gonna stick with the Bill of Rights for now. And the test has come to be: We'll incorporate it if we believe that the right that's identified is, and here I'm quoting from the 2010 case of McDonald vs. Chicago, which I'll talk about in a minute, that's a 2nd Amendment incorporation case: "If the right is fundamental to our nation's particular scheme of ordered liberty and system of justice, or deeply rooted in this nation's history and tradition." So, free speech deeply rooted in the- I don't know. You can see the play in the analysis, and the sort of evidence you'd want to introduce in support of the argument in favor of incorporation. With the Bill of Rights provisions, we know what they say; they're defined in the text of the Bill of Rights, so it's freedom of speech. Okay, is that essential? Uh, jury trial in civil cases; is that essential? And the various other protections up there. When we get outside the Constitution, the rights are a little murkier, and the definition of the right can sort of drive the result. That's something we'll talk about on another day. We're gonna stick, again, with the Bill of Rights today. So, what's been incorporated? Well, for a long time, uh, not much. The Court's a little bit reluctant, and then the Warren Court arrived, late 1950s, and that's the great era of criminal protection, rights for the criminal accused. And it's that because the Warren Court decided to incorporate virtually all of the Bill of Rights protections, the criminal procedure protections, into the Due Process Clause of the 14th Amendment and enforce them against the states, who were sending most people to jail. So that's the great age of incorporation for the criminal provisions; there's been incorporations since then, of course as well. The most recent famous case is that case of McDonald vs. Chicago when the Supreme Court a couple years ago decided that the 2nd Amendment right to bear arms is, to quote them, "deeply rooted in this nation's history and tradition, and/or fundamental to our nation's political scheme of ordered liberty," and so incorporated into the word liberty and enforceable against the states. So since 2010 we have a 2nd Amendment right to bear arms enforceable against states if states try to limit- before that, we didn't have a recognized, incorporated right. Every Bill of Rights provision has been found by the Supreme Court to incorporate, except for the following: quartering of troops; there's a 2nd Circuit Amendment, uh, er, Opinion on the 3rd Amendment saying that the quartering of troops right incorporates, so a state can't force you to house a soldier in the 2nd Circuit, which is New York and surrounding states, but the Supreme Court hasn't had the opportunity to consider that case; the 5th Amendment right to a grand jury indictment has not been found by the Supreme Court to have incorporated, so states don't need to comply with that; the 7th Amendment right to a jury trial in civil cases, so you have a federal right to a jury in a civil case, but not in a state civil trial, that's for the state to decide, that hasn't been found to incorporate; and lastly the 8th Amendment, prohibition against excessive fines hasn't incorporated. So... But they're out there, and if you wanted to make Constitutional history you could pick one of those, get a state to violate it, file a lawsuit and see what you could get the Supreme Court to do about it. The last thing I'm gonna mention, it's a concept and we'll return to it in another conversation we talk about the Equal Protection Clause and race, is the concept of reverse incorporation. The Equal Protection Clause is found in the 14th Amendment, but it's not in the 5th Amendment. Which is to say, the 14th Amendment applies to states, the 5th to the federal government, the states can't deny people equal protection of the laws, but as a strict textual matter the federal government can. They can deny equal protection all over the place if they want to, because there's nothing that says they can't. So the Supreme Court decided to fix that problem by inventing a doctrine that we call reverse incorporation, where, in the case of Bolling vs. Sharpe, which is one of the Brown vs. Board of Education companion cases, it's the desegregation case against the District of Columbia schools, which were run by Congress at the time. The Court said, Well, you know, there's that- you can't- there's a Due Process Clause in the 5th Amendment: the federal government can't take liberty without due process of law, so- and we think that liberty in the 5th Amendment context includes equal protection obligations, so we're going to reverse incorporate the equal protection clause from the 14th Amendment and apply it against the federal government through the Due Process Clause of the 5th Amendment. And now the federal government is subject to the equal protection clause, and the states are subject to most of the Bill of Rights provisions by Supreme Court decision, by Supreme Court action. Um, which ought to give you a feel for, and this is what I'll close with, not only the flexibility of the Constitution and the ambiguities of the Constitution, but the important role that the Supreme Court can and has played in structuring the way Constitutional relations actually work on the ground. Thank you. applause ♪ MUSIC ♪ Freedom 101 is made possible by generous support from Woody Young and the University of Oklahoma Alumni Association Freedom 101 is a program of the Institute for the American Constitutional Heritage at the University of Oklahoma. For more videos and podcasts visit freedom.ou.edu. ♪ MUSIC ♪

History

Background

No person shall ... be deprived of life, liberty, or property, without due process of law ...

Due Process Clause of the Fifth Amendment (1791)

The United States Bill of Rights is the first ten amendments to the United States Constitution.[1] Proposed following the oftentimes bitter 1787–88 battle over ratification of the United States Constitution, and crafted to address the objections raised by Anti-Federalists, the Bill of Rights amendments add to the Constitution specific guarantees of personal freedoms and rights, clear limitations on the government's power in judicial and other proceedings, and explicit declarations that all powers not specifically delegated to Congress by the Constitution are reserved for the states or the people. The concepts enumerated in these amendments are built upon those found in several earlier documents, including the Virginia Declaration of Rights and the English Bill of Rights 1689, along with earlier documents such as Magna Carta (1215). Although James Madison's proposed amendments included a provision to extend the protection of some of the Bill of Rights to the states, the amendments that were finally submitted for ratification applied only to the federal government.

[N]or shall any State deprive any person of life, liberty, or property, without due process of law ...

Due Process Clause of the Fourteenth Amendment (1868)

In the 1833 case of Barron v. Baltimore, the Supreme Court of the United States held that the Bill of Rights did not apply to state governments; such protections were instead provided by the constitutions of each state. After the Civil War, Congress and the states ratified the Fourteenth Amendment, which included the Due Process Clause and the Privileges or Immunities Clause. While the Fifth Amendment had included a due process clause, the due process clause of the Fourteenth Amendment crucially differed from the Fifth Amendment in that it explicitly applied to the states. The Privileges or Immunities Clause also explicitly applied to the states, unlike the Privileges and Immunities Clause of Article IV of the Constitution. In the Slaughter-House Cases (1873), the Supreme Court ruled that the Privileges or Immunities Clause was not designed to protect individuals from the actions of state governments. In Twining v. New Jersey (1908), the Supreme Court acknowledged that the Due Process Clause might incorporate some of the Bill of Rights, but continued to reject any incorporation under the Privileges or Immunities Clause.[2]

Incorporation

The doctrine of incorporation has been traced back to either Chicago, Burlington and Quincy Railroad v. City of 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 protect freedom of speech. Since that time, the Court has steadily incorporated most of the significant provisions of the Bill of Rights.[3] Provisions that the Supreme Court either has refused to incorporate, or whose possible incorporation have not yet been addressed, include the Fifth Amendment right to an indictment by a grand jury, and the Seventh Amendment right to a jury trial in civil lawsuits.

Incorporation applies both procedurally and substantively to the guarantees of 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 declined to apply new procedural constitutional rights retroactively against the states in criminal cases in Teague v. Lane, 489 U.S. 288 (1989).

Rep. John Bingham, the principal framer of the Fourteenth Amendment, advocated that the Fourteenth applied the first eight Amendments of the Bill of Rights to the States.[4] The U.S. Supreme Court subsequently declined to interpret it that way, despite the dissenting argument in the 1947 case of Adamson v. California by Supreme Court Justice Hugo Black that the framers' intent should control the Court's interpretation of the Fourteenth Amendment (he included a lengthy appendix that quoted extensively from Bingham's congressional testimony).[5] Although the Adamson Court declined to adopt Black's interpretation, the Court during the following twenty-five years employed a doctrine of selective incorporation that succeeded in extending against the States almost all of the protections in the Bill of Rights, as well as other, unenumerated rights.[6] The Bill of Rights thus imposes legal limits on the powers of governments and acts as an anti-majoritarian/minoritarian safeguard by providing deeply entrenched legal protection for various civil liberties and fundamental rights.[7][8][9] The Supreme Court for example concluded in the West Virginia State Board of Education v. Barnette (1943) case that the founders intended the Bill of Rights to put some rights out of reach from majorities, ensuring that some liberties would endure beyond political majorities.[7][8][9][10] As the Court noted the idea of the Bill of Rights "was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts."[10][11] This is why "fundamental rights may not be submitted to a vote; they depend on the outcome of no elections."[10][11] The 14th Amendment has vastly expanded civil rights protections and is cited in more litigation than any other amendment to the U.S. Constitution.[6]

Selective versus total incorporation

In the 1940s and 1960s 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.[12] A dissenting school of thought championed by Justices Hugo Black and William O. Douglas 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.[13] 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. The Tenth Amendment was excluded from total incorporation as well, due to it already being patently concerned with the power of the states.[13] 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.[13] Justice Black felt that the Fourteenth Amendment was designed to apply the first eight amendments from the Bill of Rights to the states, as he expressed in his dissenting opinion in Adamson v. California.[14] This view was again expressed by Black in his concurrence in Duncan v. Louisiana citing the Fourteenth Amendment's Privileges or Immunities Clause: "'No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States' seem to me an eminently reasonable way of expressing the idea that henceforth the Bill of Rights shall apply to the States."[15]

Due process interpretation

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). Such a selective incorporation approach followed that of Justice Moody, who wrote in Twining v. New Jersey (1908) that "It is possible that some of the personal rights safeguarded by the first eight Amendments against National action may also be safeguarded against state action, because a denial of them would be a denial of due process of law. If this is so, it is not because those rights are enumerated in the first eight Amendments, but because they are of such a nature that they are included in the conception of due process of law." The due process approach thus considers a right to be incorporated not because it was listed in the Bill of Rights, but only because it is required by the definition of due process, which may change over time. For example, Moody's decision in Twining stated that the 5th Amendment right against self-incrimination was not inherent in a conception of due process and so did not apply to states, but was overruled in Malloy v. Hogan (1964). Similarly, Justice Cardozo stated in Palko v. Connecticut (1937) that the right against double jeopardy was not inherent to due process and so does not apply to the states, but that was overruled in Benton v. Maryland (1969). Frankfurter's incrementalist approach did carry the day, but the end result is very nearly what Justice Black advocated, with the exceptions noted below.

Incorporation under privileges or immunities

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. ...

Privileges or Immunities Clause of the Fourteenth Amendment

Some have suggested that the Privileges or Immunities Clause would be a more appropriate textual basis than the due process clause for incorporation of the Bill of Rights.[16] It is often said that the Slaughter-House Cases "gutted the privileges or immunities clause" and thus prevented its use for applying the Bill of Rights against the states.[17] In his dissent to Adamson v. California, however, Justice Hugo Black 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.[18]

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.[19] 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.[20]

In the 2010 landmark case McDonald v. Chicago, the Supreme Court declared the Second Amendment is incorporated through the Due Process Clause. However, Justice Thomas, the fifth justice in the majority, criticized substantive due process and declared instead that he reached the same incorporation only through the Privileges or Immunities Clause.[21] No other justice attempted to question his rationale. This is considered by some as a "revival" of the Privileges or Immunities Clause,[22] however as it is a concurring opinion and not the majority opinion in the case, it is not binding precedent in lower courts; it is merely an indication that SCOTUS may be inclined, given the proper question, to reconsider and ultimately reverse the Slaughterhouse Cases.

In the 2019 case Timbs v. Indiana, the Supreme Court, citing McDonald, ruled that the Eighth Amendment's Excessive Fines Clause is incorporated through the Due Process Clause. Justice Thomas did not join this opinion; in a separate opinion concurring in the judgment, he once again declared that he would reach the same incorporation through the Privileges or Immunities Clause. Justice Gorsuch took an in-between position. He joined the opinion of the Court, but wrote a short concurrence acknowledging that the Privileges or Immunities Clause might be the better vehicle for incorporation—but ultimately deciding that nothing in the case itself turned on the question of which clause is the source of the incorporation.[23]

Possible consequences of the Privileges or Immunities approach

In the Timbs decision, one of Justice Thomas's stated reasons for preferring incorporation through the Privileges or Immunities Clause was what he perceived as the Court's failure to consistently or correctly define which rights are "fundamental" under the Due Process Clause. In Thomas' view, incorporation through Privileges or Immunities would allow the Court to exclude rights from incorporation which had erroneously been deemed fundamental in previous decisions.[23]

Another difference between incorporation through Due Process versus Privileges or Immunities is that the text of the Privileges or Immunities Clause refers only to the privileges or immunities of "citizens," while the Due Process Clause protects the due process rights of "any person." It is possible that a switch to Privileges or Immunities incorporation would limit protections of the rights of non-citizens against state governments.[24]

Specific amendments

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."[25] The Tenth Amendment is also not listed; by its wording, it is a reservation of powers to the states and to the people.)

Amendment I

Guarantee against establishment of religion

Guarantee of free exercise of religion

Guarantee of freedom of speech

Guarantee of freedom of the press

Guarantee of freedom of assembly

Guarantee of the right to petition for redress of grievances

Guarantee of freedom of expressive association

  • This right, though not in the words of the first amendment, was first mentioned in the case NAACP v. Alabama, 357 U.S. 449 (1958)[30] and was at that time applied to the states. See also Roberts v. United States Jaycees, 468 U.S. 609 (1984), where the U.S. Supreme Court held that "implicit in the right to engage in activities protected by the First Amendment" is "a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends."

Amendment II

Right to keep and bear arms

  • This right has been incorporated against the states. Described as a fundamental and individual right that will necessarily be subject to strict scrutiny by the courts, see McDonald v. City of Chicago (2010). Self Defense is described as "the central component" of the Second Amendment in McDonald, supra., and upheld District of Columbia v. Heller 554 U.S (2008) concluding the Fourteenth Amendment incorporates the Second Amendment right, recognized in Heller, to keep and bear arms for the purpose of self-defense. The 14th Amendment makes the 2nd Amendment right to keep and bear arms fully applicable to the States, see, McDonald vs. City of Chicago (2010). "The right to keep and bear arms must be regarded as a substantive guarantee, not a prohibition that could be ignored as long as the States legislated in an evenhanded manner," McDonald, supra..

Amendment III

Freedom from quartering of soldiers

In 1982, the Second Circuit applied the Third Amendment to the states in Engblom v. Carey. This is a binding authority over the federal courts in Connecticut, New York, and Vermont, but is only a persuasive authority over the other courts in the United States.

The Tenth Circuit has suggested that the right is incorporated because the Bill of Rights explicitly codifies the "fee ownership system developed in English law" through the Third, Fourth, and Fifth Amendments, and the Fourteenth Amendment likewise forbids the states from depriving citizens of their property without due process of law. See United States v. Nichols, 841 F.2d 1485, 1510 n.1 (10th Cir. 1988).

Amendment IV

Unreasonable search and seizure

  • This right has been incorporated against the states by the Supreme Court's decision in Mapp v. Ohio, 367 U.S. 643 (1961), although there is dicta in Wolf v. Colorado, 338 U.S. 25 (1949), saying the "core" of the Fourth Amendment applied to the States.
  • The remedy of exclusion of unlawfully seized evidence, the exclusionary rule, has been incorporated against the states. See Mapp v. Ohio. In Mapp, the Court overruled Wolf v. Colorado in which the Court had ruled that the exclusionary rule did not apply to the states.

Warrant requirements

  • The various warrant requirements have been incorporated against the states. See Aguilar v. Texas, 378 U.S. 108 (1964).
  • The standards for judging whether a search or seizure undertaken without a warrant was "unreasonable" also have been incorporated against the states. See Ker v. California, 374 U.S. 23 (1963).

Amendment V

Right to indictment by a grand jury

Protection against double jeopardy

Constitutional privilege against self-incrimination

  • This right has been incorporated against the states.[31][32]
    1. Self Incrimination in Court See Griffin v. California, 380 U.S. 609 (1965), Malloy v. Hogan, 378 U.S. 1 (1964).
    2. Miranda See Miranda v. Arizona, 384 U.S. 436 (1966).
  • A note about the Miranda warnings: The text of the Fifth Amendment does not require that the police, before interrogating a suspect whom they have in custody, give him or her the now-famous Miranda warnings. Nevertheless, the Court has held that these warnings are a necessary prophylactic device, and thus required by the Fifth Amendment in order to introduce a suspect's statements against him or her as part of a prosecutor's case-in-chief whether in state or federal court. The Court has held in Vega v. Tekoh that failure to provide Miranda warnings does not, by itself, violate the Fifth Amendment.

Right to Due Process of Law

  • This right has not formally been incorporated, with the Court reasoning that the Fourteenth Amendment already protects due process of law against state violation. It first defended the Fourteenth Amendment as protecting due process of law at the state level in Scott v. McNeal, 154 U.S. 34, at 45 (1894).[33]

Protection against taking of private property without just compensation

Amendment VI

Right to a speedy trial

Right to a public trial

Right to trial by impartial jury

  • This right has been incorporated against the states. See Duncan v. Louisiana, 391 U.S. 145 (1968), which guarantees the right to a jury trial in non-petty cases.[34] See also Parker v. Gladden, 385 U.S. 363 (1966), where the Supreme Court ruled "that the statements of the bailiff to the jurors are controlled by the command of the Sixth Amendment, made applicable to the States through the Due Process Clause of the Fourteenth Amendment. It guarantees that 'the accused shall enjoy the right to a trial, by an impartial jury ....'"[34][dead link] However, the size of the jury vary between federal and state courts. Even so, the Supreme Court has ruled that a jury in a criminal case may have as few as six members. Williams v. Florida, 399 U.S. 78 (1970). Furthermore, there is no right to a jury trial in juvenile delinquency proceedings held in state court. See McKeiver v. Pennsylvania, 403 U.S. 528 (1971). The Supreme Court ruled in Ramos v. Louisiana (2020) that a unanimous jury vote requirement for criminal convictions is further incorporated against the states, overturning the prior Apodaca v. Oregon (1972) which had allowed states to make this determination on its own.[35]

Right to a jury selected from residents of the state and district where the crime occurred

  • This right has not been incorporated against the states. See Caudill v. Scott, 857 F.2d 344 (6th Cir. 1988); Cook v. Morrill, 783 F.2d 593 (5th Cir. 1986); Zicarelli v. Dietz, 633 F.2d 312 (3rd Cir. 1980). In Zicarelli v. Gray, 543 F.2d 466 (3d Cir. 1976), a lower federal court "assumed" that state governments could not violate the vicinage right.[3] The Supreme Court has not yet heard a case concerning application of this federal right to the state level.

Right to notice of accusations

Right to confront adverse witnesses

Right to compulsory process (subpoenas) to obtain witness testimony

Right to assistance of counsel

  • This right has been incorporated against the states. See Powell v. Alabama 287 U.S. 45 (1932), for capital cases, see Gideon v. Wainwright, 372 U.S. 335 (1963) for all felony cases, and see Argersinger v. Hamlin, 407 U.S. 25 (1972) for imprisonable misdemeanors.[34] In subsequent decisions, the Court extended the right to counsel to any case in which a jail sentence is imposed.
  • However, the right to petition a federal court for relief against ineffective assistance of state-level council has not been incorporated against the states if the evidentiary basis for such a procedure was not introduced into the state trial record. See Shinn v. Martinez Ramirez, 596 U.S. ___ (2022).

Amendment VII

Right to jury trial in civil cases

  • This right has not been incorporated against the states.[36] See Walker v. Sauvinet, 92 U.S. 90 (1876), Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211 (1916) and Pearson v. Yewdall, 95 U.S. 294 (1877). In Walker, Justice Morrison Waite ruled that the Fourteenth Amendment did not compel states to provide jury trials for civil matters because states "are left to regulate trials in their own courts in their own way. A trial by jury in suits at common law pending in the State courts is not, therefore, a privilege or immunity of national citizenship."[37]

Re-Examination Clause

  • This right has not been incorporated against the states.[36] See The Justices v. Murray, 76 U.S. (9 Wall.) 274 (1870), and Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211 (1916). The right prevents federal courts from retrying a civil jury case without following common law procedures, but not state courts. As the Court ruled in Justices, "the seventh amendment could not be invoked in a State court to prohibit it from re-examining, on a writ of error, facts that had been tried by a jury in the court below."[38]

Amendment VIII

Protection against excessive bail

  • This right may have been incorporated against the states. In Schilb v. Kuebel, 404 U.S. 357 (1971), the Court stated in dicta: "Bail, of course, is basic to our system of law, and the Eighth Amendment's proscription of excessive bail has been assumed to have application to the States through the Fourteenth Amendment." In Murphy v. Hunt, 455 U.S. 478 (1982), the Court did not reach the issue because the case was dismissed as moot. Bail was included in the list of incorporated rights in McDonald footnote 12, citing Schilb.

Protection against excessive fines

  • This right has been incorporated against the states. See Timbs v. Indiana (2019), in which Justice Ruth Bader Ginsburg wrote for the majority "For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history: Exorbitant tolls undermine other constitutional liberties."[39][40]

Protection against cruel and unusual punishments

  • This right has been incorporated against the states. See Robinson v. California, 370 U.S. 660 (1962). This holding has led the Court to suggest, in dicta, that the excessive bail and excessive fines protections have also been incorporated. See Baze v. Rees, 128 S. Ct. 1520, 1529 (2008).

Reverse incorporation

A similar legal doctrine to incorporation is that of reverse incorporation. Whereas incorporation applies the Bill of Rights to the states through the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment, equality before the law is required under the laws of the federal government by the Due Process Clause of the Fifth Amendment.[41] For example, in Bolling v. Sharpe, 347 U.S. 497 (1954), which was a companion case to Brown v. Board of Education, the schools of the District of Columbia were desegregated even though Washington is a federal enclave. Likewise, in Adarand Constructors, Inc. v. Peña 515 U.S. 200 (1995), an affirmative action program by the federal government was subjected to strict scrutiny based on equal protection.[citation needed]

References

  1. ^ "The Charters of Freedom: The Bill of Rights". Washington D.C.: National Archives and Records Administration. Retrieved October 4, 2015.
  2. ^ Chu, Vivian (September 21, 2009). "The Second Amendment and Incorporation: An Overview of Recent Appellate Cases" (PDF). Congressional Research Service. Archived from the original (PDF) on October 6, 2022. Retrieved October 13, 2017.
  3. ^ a b See, e.g., Gary Bugh (2023). Incorporation of the Bill of Rights: An Accounting of the Supreme Court’s Extension of Federal Civil Liberties to the States. New York: Peter Lang ISBN 9781433196317; Constitutional Rights Foundation discussion, giving summary, extensive WWW links and timeline; Encyclopedia.com Article;BYU Law Review Article
  4. ^ Congressional Globe: Debates and Proceedings, 1833–1873
  5. ^ Adamson v. California, 332 U.S. 46, 92-118 (1947)
  6. ^ a b "Primary Documents in American History", Library of Congress
  7. ^ a b Jeffrey Jowell; Jonathan Cooper (2002). Understanding Human Rights Principles. Oxford and Portland, Oregon: Hart Publishing. p. 180. ISBN 9781847313157. Retrieved March 16, 2017.
  8. ^ a b Loveland, Ian (2002). "Chapter 18 - Human Rights I: Traditional Perspectives". Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction (Seventh ed.). London: Oxford University Press. p. 559. ISBN 9780198709039. Retrieved March 16, 2017.
  9. ^ a b Jayawickrama, Nihal (2002). The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence. Cambridge: Cambridge University Press. p. 98. ISBN 9780521780421. Retrieved March 16, 2017.
  10. ^ a b c West Virginia State Board of Education v. Barnette, 319 U.S. 624, Majority Opinion, item 3 (US 1943) ("The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.").
  11. ^ a b Obergefell v. Hodges, No. 14-556, slip op. Archived 2019-10-02 at the Wayback Machine at 24 (U.S. June 26, 2015).
  12. ^ Steffen W. Schmidt, Mack C. Shelley, Barbara A. Bardes: American Government and Politics Today, Page 71. Thomson Wadsworth, 2004.
  13. ^ a b c Amar, Akhil Reed: The Bill of Rights: Creation and Reconstruction , Page 234. Yale University Press, 1998
  14. ^ Curtis, Michael Kent (1994) [1986]. No State Shall Abridge (Second printing in paperback ed.). Duke University Press. pp. 5, 202. ISBN 0-8223-0599-2.
  15. ^ Curtis, Michael Kent (1994) [1986]. No State Shall Abridge (Second printing in paperback ed.). Duke University Press. p. 202. ISBN 0-8223-0599-2.
  16. ^ See Doherty, Brian. "Killing Slaughterhouse: Understanding the controversial 1873 decision at the center of the Supreme Court's upcoming gun rights fight," Reason Magazine Retrieved 2010-01-26.
  17. ^ See Pilon, Roger. "Lawless Judges: Refocusing the Issue for Conservatives," Georgetown Journal of Law and Public Policy Volume II, page 21 (2000).
  18. ^ Adamson v. California, 332 U.S. 46 (1947) (Black, J., dissenting).
  19. ^ 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).
  20. ^ Slaughter-House Cases, 83 U.S. 36 (1873).
  21. ^ McDonald v. City of Chi., 561 U.S. 742, 806 (2010) (Thomas, J., dissenting)
  22. ^ Privileges or Immunities Clause alive again
  23. ^ a b Timbs v. Indiana, 586 U.S. Argued November 28, 2018—Decided February 20, 2019
  24. ^ William J. Aceves (September 9, 2019). "A Distinction with a Difference: Rights, Privileges, and the Fourteenth Amendment". Tex. L. Rev. 98.
  25. ^ Laurence H. Tribe (1998). American Constitutional Law (2nd ed.). p. 776 n. 14.
  26. ^ Justice Thomas, in a concurring opinion in Elk Grove Unified School District v. Newdow, expressed his view that Everson was wrongly decided and that incorporation of the Establishment Clause is not justified under the Constitution. See Nussbaum, Martha Craven (2008). Liberty of conscience: in defense of America's tradition of religious equality. Basic Books. pp. 105 et seq. and Chapter 4. ISBN 978-0-465-05164-9. Richard F. Duncan (2007). "JUSTICE THOMAS AND PARTIAL INCORPORATION OF THE ESTABLISHMENT CLAUSE: HEREIN OF STRUCTURAL LIMITATIONS, LIBERTY INTERESTS, AND TAKING INCORPORATION SERIOUSLY" (PDF). Regent University Law Review. 20: 37–56. Archived from the original (PDF) on January 15, 2013.
  27. ^ a b "Gitlow v. New York, 268 U.S. 652 (1925) at 268". Justia US Supreme Court Center. June 8, 1925. Retrieved August 2, 2020. For present purposes, we 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 personal rights and "liberties" protected by the due process clause of the Fourteenth Amendment from impairment by the States.
  28. ^ Gary Hartman; Roy M. Mersky; Cindy L. Tate (2004). "Landmark Supreme Court Cases: "Edwards v. South Carolina."". New York: Facts On File, Inc., 2004. American History Online. Retrieved August 15, 2013.
  29. ^ "Pearson Prentice Hall: Supreme Court Cases - Edwards v. South Carolina, 1963". Pearson Education, Inc. Pearson Education, Inc. Retrieved August 15, 2013.
  30. ^ Vance, Laurence M. (May 9, 2012). "Does the First Amendment Protect the Freedom of Association? The Future of Freedom Foundation". The Future of Freedom Foundation. Archived from the original on June 17, 2023.
  31. ^ Akhil Reed Amar and Renee Lettow Lerner, "Fifth Amendment First Principles: The Self- Incrimination Clause", Michigan Law Review 93 (1995): 857, accessed February 15, 2015.
  32. ^ Robert L. Cord (1975). "Neo-Incorporation: The Burger Court and the Due Process Clause of the Fourteenth Amendment". Fordham Law Review. 44 (2): 215–230. Retrieved February 13, 2015.
  33. ^ Bugh, Gary (2023). Incorporation of the Bill of Rights: An Accounting of the Supreme Court’s Extension of Federal Civil Liberties to the States. New York: Peter Lang. p. 97. ISBN 9781433196317.
  34. ^ a b c d "Bill of Rights Institute: Incorporation". Bill of Rights Center. Archived from the original on October 12, 2013. Retrieved October 11, 2013.
  35. ^ de Vogue, Ariana (April 20, 2020). "Supreme Court says unanimous jury verdicts required in state criminal trials for serious offenses". CNN. Retrieved April 20, 2020.
  36. ^ a b "The Constitution of the United States of America: Analysis, and Interpretation - 1992 Edition --> Amendments to the Constitution --> Seventh Amendment - Civil Trials". U.S. Government Printing Office. U.S. Government Printing Office. 1992. p. 1453. Retrieved July 4, 2013. The Amendment governs only courts which sit under the authority of the United States, including courts in the territories and the District of Columbia, and does not apply generally to state courts.
  37. ^ Walker, 92 U.S. 90, at 92.
  38. ^ Justices, 76 U.S. 274, at, 278.
  39. ^ de Vogue, Ariane; Tatum, Sophie (February 20, 2019). "Now we know what Ruth Bader Ginsburg was doing". CNN. Archived from the original on February 28, 2019. Retrieved February 20, 2019.
  40. ^ Liptak, Adam (February 20, 2019). "Supreme Court Puts Limits on Police Power to Seize Private Property". The New York Times. Archived from the original on April 10, 2020. Retrieved February 20, 2019.
  41. ^ Columbia Law Review, May 2004

Further reading

  • Gary Bugh (2023). Incorporation of the Bill of Rights: An Accounting of the Supreme Court’s Extension of Federal Civil Liberties to the States. New York: Peter Lang.
  • 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")."Limits On The Power Of States To Regulate Firearms". W3.uchastings.edu. Archived from the original on October 13, 2007. Retrieved September 6, 2008.
  • 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).
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