Incorporation of the Bill of Rights
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.
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
[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.
The doctrine of incorporation has been traced back to either
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).
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. 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. 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. 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. 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. 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."
Due process interpretation
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. 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. 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.
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. 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.
In the 2010 landmark case
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.
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.
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.
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." The Tenth Amendment is also not listed; by its wording, it is a reservation of powers to the states and to the people.)
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) and Stromberg v. California, 283 U.S. 359 (1931).
Guarantee of freedom of the press
- This provision has been incorporated against the states. See Gitlow v. New York, 268 U.S. 652 (1925) Near v. Minnesota, 283 U.S. 697 (1931).
Guarantee of freedom of assembly
- This provision has been incorporated against the states. See De Jonge v. Oregon, 299 U.S. 353 (1937).
Guarantee of the right to petition for redress of grievances
- This provision has been incorporated against the states. See Edwards v. South Carolina, 372 U.S. 229 (1963).
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) 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."
- 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..
Freedom from quartering of soldiers
- This provision has been incorporated against the states within the jurisdiction of the United States Court of Appeals for the Second Circuit, but has not been incorporated against the states elsewhere.
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).
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.
- 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).
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).
Protection against double jeopardy
- This right has been incorporated against the states. See Benton v. Maryland, 395 U.S. 784 (1969). However, this is generally limited by the doctrine of dual sovereignty, according to which a conviction, or acquittal, in federal court does not prevent a conviction in state court for the same crime, and a conviction in a court of one state does not prevent a conviction for the same action in a court of another state. See Bartkus v. Illinois, 359 U.S. 121 (1959), Heath v. Alabama, 474 U.S. 82 (1985), Gamble v. United States (2019).
Constitutional privilege against self-incrimination
- This right has been incorporated against the states.
- Self Incrimination in Court See Griffin v. California, 380 U.S. 609 (1965), Malloy v. Hogan, 378 U.S. 1 (1964).
- 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 by police who interrogate any criminal suspect in custody, regardless of whether the subject 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).
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
- 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), which guarantees the right to a jury trial in non-petty cases. 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 ....'"[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.
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 (3d Cir. 1980).
Right to notice of accusations
- This right has been incorporated against the states. See In re Oliver, 333 U.S. 257 (1948). See also Rabe v. Washington, 405 U.S. 313 (1972).
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).
- 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. 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).
Right to jury trial in civil cases
- This right has not been incorporated against the states. See Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211 (1916) and Pearson v. Yewdall, 95 U.S. 294 (1877)
- This right has not been incorporated against the states. See Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211 (1916)
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."
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).
A similar legal doctrine to incorporation is that of reverse incorporation. Whereas incorporation applies the Bill of Rights to the states through 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. 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.
- ^ "The Charters of Freedom: The Bill of Rights". Washington D.C.: National Archives and Records Administration. Retrieved October 4, 2015.
- ^ Chu, Vivian (21 September 2009). "The Second Amendment and Incorporation: An Overview of Recent Appellate Cases" (PDF). Congressional Research Service. Retrieved 13 October 2017.
- ^ See, e.g., Constitutional Rights Foundation discussion, giving summary, extensive WWW links and timeline; Encyclopedia.com Article;BYU Law Review Article
- ^ Congressional Globe: Debates and Proceedings, 1833–1873
- ^ Adamson v. California, 332 U.S. 46, 92-118 (1947)
- ^ a b "Primary Documents in American History", Library of Congress
- ^ ISBN 9781847313157. Retrieved 16 March 2017.
- ^ ISBN 9780198709039. Retrieved 16 March 2017.
- ^ ISBN 9780521780421. Retrieved 16 March 2017.
- ^ 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.").
- ^ 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).
- ^ Steffen W. Schmidt, Mack C. Shelley, Barbara A. Bardes: American Government and Politics Today, Page 71. Thomson Wadsworth, 2004.
- ^ a b c Amar, Akhil Reed: The Bill of Rights: Creation and Reconstruction , Page 234. Yale University Press, 1998
- ISBN 0-8223-0599-2.
- ISBN 0-8223-0599-2.
- ^ 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.
- ^ See Pilon, Roger. "Lawless Judges: Refocusing the Issue for Conservatives," Georgetown Journal of Law and Public Policy Volume II, page 21 (2000).
- ^ Adamson v. California, 332 U.S. 46 (1947) (Black, J., dissenting).
- ^ 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).
- ^ Slaughter-House Cases, 83 U.S. 36 (1873).
- ^ McDonald v. City of Chi., 561 U.S. 742, 806 (2010) (Thomas, J., dissenting)
- ^ Privileges or Immunities Clause alive again
- ^ a b Timbs v. Indiana, 586 U.S. Argued November 28, 2018—Decided February 20, 2019
- ^ William J. Aceves (9 September 2019). "A Distinction with a Difference: Rights, Privileges, and the Fourteenth Amendment". Tex. L. Rev. 98.
- ^ Laurence H. Tribe (1998). American Constitutional Law (2nd ed.). p. 776 n. 14.
- 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 2013-01-15.
- ^ 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.
- ^ 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 15 August 2013.
- ^ "Pearson Prentice Hall: Supreme Court Cases - Edwards v. South Carolina, 1963". Pearson Education, Inc. Pearson Education, Inc. Retrieved 15 August 2013.
- ^ Vance, Laurence M. "Does the First Amendment Protect the Freedom of Association? The Future of Freedom Foundation". The Future of Freedom Foundation.
- ^ 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.
- ^ 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.
- ^ a b c d "Bill of Rights Institute: Incorporation". Bill of Rights Center. Archived from the original on 12 October 2013. Retrieved 11 October 2013.
- ^ 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.
- ^ "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 4 July 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.
- ^ 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.
- ^ 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.
- ^ Columbia Law Review, May 2004
- 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 2007-10-13. Retrieved 2008-09-06.
- 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).