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Incorporation (of the Bill of Rights) is the American legal doctrine by which portions of the Bill of Rights are applied to the states through the Due Process Clause of the Fourteenth Amendment, although some have suggested that the Privileges or Immunities Clause would be a more appropriate textual basis. Prior to the ratification of the 14th Amendment and the development of the incorporation doctrine, in 1833 the Supreme Court held in Barron v. Baltimore that the Bill of Rights applied only to the Federal, but not any State, government. Even years after the ratification of the Fourteenth Amendment the Supreme Court in United States v. Cruikshank, still held that the First and Second Amendment did not apply to state governments. However, beginning in the 1890's, a series of United States 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.

Slaughter House

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.¹ In his dissent to Adamson v. California, 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 (Teague v. Lane, 489 U.S. 288 (1989)) 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.

Rep. John Bingham, the principal framer of the Fourteenth Amendment, advocated that the Fourteenth apply the first eight Amendments of the Bill of Rights to the States.⁵ The U.S. Supreme Court subsequently declined to interpret it that way. Until the 1947 case of Adamson v. California, Supreme Court Justice Hugo Black argued in his dissent that the framers' intent should control the Court's interpretation of the 14th Amendment, and he attached a lengthy appendix that quoted extensively from Bingham's congressional testimony.⁶ Though 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 to the States almost of all of the protections in the Bill of Rights, as well as other, unenumerated rights. The 14th Amendment has vastly expanded civil rights protections and is cited in more litigation than any other amendment to the U.S. Constitution.⁷

Selective 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.⁸ A dissenting 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.⁹ 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.⁹ 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 Adamson v. California.¹⁰ This view was again expressed by Black in Duncan v. Louisiana: "'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."¹¹

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). 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."¹² The Tenth Amendment is also not listed; by its wording, it is a reservation of rights to the states.)

Amendment I

Guarantee against establishment of religion

• This provision has been incorporated against the states. See Everson v. Board of Education, 330 U.S. 1 (1947).

Guarantee of free exercise of religion

• This provision has been incorporated against the states. See Cantwell v. Connecticut, 310 U.S. 296 (1940).

Guarantee of freedom of speech

• This provision has been incorporated against the states. See Gitlow v. New York, 268 U.S. 652 (1925)(dicta).

Guarantee of freedom of the press

• This provision has been incorporated against the states. See Near v. Minnesota, 283 U.S. 697 (1931).

Guarantee of freedom of assembly

• This provision has been incorporated against the states. See DeJonge v. Oregon, 299 U.S. 353 (1937).

Right to petition for redress of grievances

• It appears that no one case incorporates this right individually. However, dicta in Edwards v. South Carolina, 372 U.S. 229 (1963) suggests that this right is incorporated along with all the other First Amendment guarantees.

Guarantee of freedom of expressive association

• This provision has been implicitly incorporated against the states. In Boy Scouts of America v. Dale, 530 U.S. 640 (2000), the Court ruled that this provision of the First Amendment forbade the state of New Jersey from applying its public accommodations law to a private association, which it held the Boy Scouts to be, in order to force it to admit gay boys and men as members. That ruling must logically rest on the implicit notion that the First Amendment right of expressive association restricts state governments as well as the federal government.

Amendment II

Right to keep and bear arms

• This provision has not been held to be incorporated against the states. See Miller v. Texas, 153 U.S. 535 (1894); Presser v. Illinois, 116 U.S. 252 (1886); United States v. Cruikshank, 92 U.S. 542 (1875). However, the court has ruled that the second amendment codifies a pre-existing individual right to possess and carry firearms, which is not in any manner dependent on the Constitution for its existence.¹³ See District of Columbia et al. v. Heller (2008). Because Cruickshank, Presser, and Miller predated the Supreme Court's modern incorporation cases, it now appears to be an open question as to whether the Second Amendment applies to the states. The issue is currently pending in the Court of Appeals for the Ninth Circuit in the case of Nordyke v. King.¹⁴

Amendment III

Freedom from quartering of soldiers

• This provision has not been held to be incorporated against the states. This is not to say that it has been held not to be incorporated; rather, it is simply that the Supreme Court has never explicitly said that it applies to the 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). Furthermore, in 1982, the Second Circuit applied the Third Amendment to the states in Engblom v. Carey.

Amendment IV

Unreasonable search and seizure

• This right has been incorporated against the states, along with the remedy of exclusion of unlawfully seized evidence, by the Supreme Court's decision in Mapp v. Ohio, 367 U.S. 643 (1961). In Mapp, the Court overruled Wolf v. Colorado, 338 U.S. 25 (1949), in which the Court had ruled that while the Fourth Amendment applied to the states (meaning that they were bound not to engage in unreasonable searches and seizures), the exclusionary rule did not (meaning that they were free to fashion other remedies for criminal defendants whose possessions had been illegally seized by the police in violation of the Fourth Amendment).

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

• This right has been held not to be incorporated against the states. See Hurtado v. California, 110 U.S. 516 (1884). Because many state constitutions provide for indictment by grand jury, at least in the case of serious crimes, it is unlikely that the Supreme Court will revisit the decision not to incorporate this right against the states.

Protection against double jeopardy

• This right has been incorporated against the states. See Benton v. Maryland, 395 U.S. 784 (1969).

Constitutional privilege against self-incrimination

• This right has been incorporated against the states. See Malloy v. Hogan, 378 U.S. 1 (1964).
• 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 by police who interrogate any criminal suspect, regardless of whether he or she is ultimately prosecuted in state or federal court.

Protection against taking of private property without just compensation

• This right has been incorporated against the states. See Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897). This proposition is now so uncontroversial that the Court recites it without citation. See, e.g., Kelo v. City of New London, 545 U.S. 469 (2005).

Amendment VI

Right to a speedy trial

• This right has been incorporated against the states. See Klopfer v. North Carolina, 386 U.S. 213 (1967).

Right to a public trial

• This right has been incorporated against the states. See In re Oliver, 333 U.S. 257 (1948).

Right to trial by impartial jury

• This right has been incorporated against the states. See Duncan v. Louisiana, 391 U.S. 145 (1968). However, the size of the jury, as well as the requirement that it unanimously reach its verdict, 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, and only nine jurors need agree on a verdict. 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).

Right to notice of accusations

• This right has been incorporated against the states. See In re Oliver, 333 U.S. 257 (1948).

Right to confront adverse witnesses

• This right has been incorporated against the states. See Pointer v. Texas, 380 U.S. 400 (1965).

Right to compulsory process (subpoenas) to obtain witness testimony

• This right has been incorporated against the states. See Washington v. Texas, 388 U.S. 14 (1967).

Right to assistance of counsel

• This right has been incorporated against the states. See Gideon v. Wainwright, 372 U.S. 335 (1963). In subsequent decisions, the Court extended the right to counsel to any case in which a jail sentence is imposed.

Amendment VII

Right to jury trial in civil cases

• This right has been held not to be incorporated against the states. See Curtis v. Loether, 415 U.S. 189 (1974).

Amendment VIII

Protections against "excessive" bail and "excessive" fines

• These provisions have not been held to be incorporated against the states. This is not to say that they have been held not to be incorporated, like the provision of the Fifth Amendment for indictment by grand jury. Rather, it is an open question whether these two provisions apply to the states by virtue of the Fourteenth Amendment. In Murphy v. Hunt, 455 U.S. 478 (1982), the Court held that a pretrial detainee's suit under 42 U.S.C. § 1983 that he was being unconstitutionally denied bail, in violation of the Eighth Amendment, was rendered moot when he was convicted in a Nebraska court. The conclusion that the § 1983 case had been moot from the moment of the defendant's conviction allowed the Court to avoid deciding whether the Eighth Amendment protection against "excessive" bail applied to prosecutions in state court. In any event, all state constitutions provide for a similar right, and so the most frequent mechanism for challenging the amount of bail, or the complete denial of bail, remains state law.

Protection against "cruel and unusual punishments"

• This provision 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 doctrine to incorporation is that of reverse incorporation. Whereas incorporation applies the Bill of Rights to the states though the Due Process Clause of the Fourteenth Amendment, in reverse incorporation, the Equal Protection Clause of the Fourteenth Amendment has been held to apply to the federal government through the Due Process Clause located in the Fifth Amendment.¹⁵

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. ^ Congressional Globe: Debates and Proceedings, 1833-1873
6. ^ Adamson v. California, 332 U.S. 46, 92-118 (1947)
7. ^ "Primary Documents in American History", Library of Congress
8. ^ Steffen W. Schmidt, Mack C. Shelley, Barbara A. Bardes: American Government and Politics Today, Page 71. Thomson Wadsworth, 2004.
9. ^ ^{a b} Amar, Akhil Reed: The Bill of Rights: Creation and Reconstruction , Page 234. Yale University Press, 1998
10. ^ Curtis, Michael Kent [1986] (1994). No State Shall Abridge, Second printing in paperback, Duke University Press, 5,202. ISBN 0-8223-0599-2. 
11. ^ Curtis, Michael Kent [1986] (1994). No State Shall Abridge, Second printing in paperback, Duke University Press, 202. ISBN 0-8223-0599-2. 
12. ^ Laurence H. Tribe, American Constitutional Law 776 n. 14 (2nd ed. 1998)
13. ^ District of Columbia, et al., Petitioners v. Dick Anthony Heller. 554 U.S. ____ (2008), page 19. "Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it 'shall not be infringed.' As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), '[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.'"
14. ^ The Volokh Conspiracy, Briefs on Whether the Second Amendment Should Apply to the States Via the Fourteenth, September 12, 2008. See also the Calguns Foundation Wiki, Nordyke v. King; and Of Arms and the Law, Amicus briefs filed in Nordyke, October 1, 2008.
15. ^ Columbia Law Review, May 2004

• 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").¹
• 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