Incorporation of the Bill of Rights

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The incorporation of the Bill of Rights (or incorporation for short) is the process by which American courts have applied portions of the U.S. Bill of Rights to the states. Prior to the 1890s, the Bill of Rights was held only to apply to the federal government. Under the incorporation doctrine, most provisions of the Bill of Rights now also apply to the state and local governments, by virtue of the due process clause of the Fourteenth Amendment of the Constitution.

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, still held that the First and Second Amendment did not apply to state governments. However, beginning in the 1890s, 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.

History

The genesis 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.^[1]

Provisions that the Supreme Court either has refused to incorporate, or whose possible incorporation has 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 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."^{[citation needed]}

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 applied the first eight Amendments of the Bill of Rights to the States.^[2] 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.^[3] 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 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.^[4]

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.^[5] 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 (Amendments 9 and 10 being patently connected to the powers of the federal government alone).^[6] Black felt that the Fourteenth Amendment required the States to respect all of the enumerated rights set forth in the first eight amendments, but he did not wish to see the doctrine expanded to include other, unenumerated "fundamental rights" that might be based on the Ninth Amendment. Black felt that his formulation eliminated any arbitrariness or caprice in deciding what the Fourteenth Amendment ought to protect, by sticking to words already found in the Constitution. Although Black was willing to invalidate federal statutes on federalism grounds, he was not inclined to read any of the first eight amendments as states' rights provisions as opposed to individual rights provisions.^[6] 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.^[7] This view was again expressed by Black in his concurrence 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."^[8]

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

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.^[9] 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.^[10] 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.^[11]

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.^[12] 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.^[13]

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. No other justice attempted to question his rationale. This is considered by some as a "revival" of the Privileges or Immunities Clause.^[14]

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."^[15] 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

• This provision has been incorporated against the states. See Everson v. Board of Education, 330 U.S. 1 (1947).^[16]

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

• Incorporation is suggested in Edwards v. South Carolina, 372 U.S. 229 (1963) and is essentially the basis of Romer v. Evans, 517 U.S. 620 (1996).

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, and was at that time applied to the states.

Amendment II

Right to keep and bear arms

• This right has been incorporated against the states. See McDonald v. Chicago (2010).

Amendment III

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, and has not been held to be 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 Connecticut, New York, and Vermont, but is only a persuasive authority over the remainder of 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, 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 in custody, 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).

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. If there are twelve, 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 Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211 (1916).

Re-Examination Clause

• This clause has been applied to the states. See The Justices v. Murray, 76 U.S. 9 Wall. 274 (1869).

Amendment VIII

Protections against "excessive" bail and "excessive" fines

• These provisions have not been held to be incorporated against the states. 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 legal 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.^[17] 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 federal. 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.

References

1. ^ See, e.g., Constitutional Rights Foundation discussion, giving summary, extensive WWW links and timeline; JRank Law Library; Encyclopedia.com Article;BYU Law Review Article
2. ^ Congressional Globe: Debates and Proceedings, 1833-1873
3. ^ Adamson v. California, 332 U.S. 46, 92-118 (1947)
4. ^ "Primary Documents in American History", Library of Congress
5. ^ Steffen W. Schmidt, Mack C. Shelley, Barbara A. Bardes: American Government and Politics Today, Page 71. Thomson Wadsworth, 2004.
6. ^ ^{a b} Amar, Akhil Reed: The Bill of Rights: Creation and Reconstruction , Page 234. Yale University Press, 1998
7. ^ 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. 
8. ^ Curtis, Michael Kent (1994) [1986]. No State Shall Abridge (Second printing in paperback ed.). Duke University Press. p. 202. ISBN 0-8223-0599-2. 
9. ^ 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.
10. ^ See Pilon, Roger. "Lawless Judges: Refocusing the Issue for Conservatives," Georgetown Journal of Law and Public Policy Volume II, page 21 (2000).
11. ^ Adamson v. California, 332 U.S. 46 (1947) (Black, J., dissenting).
12. ^ 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).
13. ^ Slaughter-House Cases, 83 U.S. 36 (1873).
14. ^ Privileges or Immunities Clause alive again
15. ^ Laurence H. Tribe, American Constitutional Law 776 n. 14 (2nd ed. 1998)
16. ^ 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 0465051642. Nebraska Law Review Article.
17. ^ Columbia Law Review, May 2004

Further reading

• 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. http://w3.uchastings.edu/plri/fall94/mcclen2.html. 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).