InUnited States constitutional law,incorporation is the doctrine by which portions of theBill of Rights have been made applicable to thestates. When the Bill of Rights was ratified, the courts held that its protections extended only to the actions of thefederal government and that the Bill of Rights did not place limitations on the authority of thestates and theirlocal governments. However, the post–Civil War era, beginning in 1865 with theThirteenth Amendment, which declared the abolition ofslavery, 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 theDue Process Clause of theFourteenth Amendment of 1868.
Prior to the ratification of the Fourteenth Amendment and the development of the incorporation doctrine, theSupreme Court in 1833 held inBarron 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 inUnited States v. Cruikshank (1876) still held that theFirst andSecond 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 ...
The United States Bill of Rights is the first tenamendments to theUnited 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 byAnti-Federalists, the Bill of Rights amendments add to the Constitution specific guarantees of personal freedoms andrights, 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 thepeople. The concepts enumerated in these amendments are built upon those found in several earlier documents, including theVirginia Declaration of Rights and the EnglishBill of Rights 1689, along with earlier documents such asMagna Carta (1215). AlthoughJames 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 ...
In the 1833 case ofBarron v. Baltimore, theSupreme Court of the United States held that the Bill of Rights did not apply to state governments; such protections were instead provided by theconstitutions of each state. After theCivil War, Congress and the states ratified theFourteenth Amendment, which included theDue Process Clause and thePrivileges or Immunities Clause. While theFifth 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 thePrivileges and Immunities Clause ofArticle IV of the Constitution. In theSlaughter-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. InTwining 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]
The doctrine of incorporation has been law since Presser v. Illinois, 116 U.S. 252 (1886). At 116 U.S. 253 the Supreme Court opined "The provision in the Fourteenth Amendment to the Constitution that "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" does not prevent a state from passing such laws to regulate the privileges and immunities of its own citizens as do not abridge their privileges and immunities as citizens of the United States." The Fifth Amendment Takings Clause was specifically incorporated inChicago, Burlington and Quincy Railroad v. City of Chicago (1897) in which the Supreme Court appeared to require some form ofjust 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, toGitlow 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 has not specifically incorporated include theFifth Amendment right to an indictment by agrand jury, and theSeventh Amendment right to ajury 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 inTeague 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] TheU.S. Supreme Court subsequently declined to interpret it that way, despite the dissenting argument in the 1947 case ofAdamson v. California by Supreme Court JusticeHugo 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 theAdamson 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 theStates almost all of the protections in the Bill of Rights, as well as other, unenumerated rights.[6] TheBill 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 theWest Virginia State Board of Education v. Barnette (1943) case that the founders intended theBill 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 expandedcivil rights protections and is cited in more litigation than any other amendment to the U.S. Constitution.[6]
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 byJusticesHugo Black andWilliam 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 theNinth Amendment. TheTenth 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 inAdamson v. California.[14] This view was again expressed by Black in his concurrence inDuncan 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]
JusticeFelix 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 inRochin v. California (1952). Such a selective incorporation approach followed that of JusticeMoody, who wrote inTwining 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 ofdue process, which may change over time. For example, Moody's decision inTwining 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 inMalloy v. Hogan (1964). Similarly, JusticeCardozo stated inPalko v. Connecticut (1937) that the right againstdouble jeopardy was not inherent to due process and so does not apply to the states, but that was overruled inBenton 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.
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. ...
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 theSlaughter-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 toAdamson v. California, however, JusticeHugo Black pointed out that theSlaughter-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, theSlaughterhouse 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 theSlaughterhouse Cases affirmatively supported incorporation of the Bill of Rights against the states.[19] Indicta, Justice Miller's opinion inSlaughterhouse 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 caseMcDonald v. Chicago, the Supreme Court declared theSecond Amendment is incorporated through the Due Process Clause. However, JusticeThomas, 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 theSlaughterhouse Cases.
In the 2019 caseTimbs v. Indiana, the Supreme Court, citingMcDonald, ruled that theEighth 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. JusticeGorsuch 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]
In theTimbs 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]
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 theWarren 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. (TheNinth 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] TheTenth Amendment is also not listed; by its wording, it is a reservation of powers to the states and to the people.)
Guarantee againstestablishment of religion
Guarantee offree exercise of religion
Guarantee offreedom of speech
Guarantee offreedom of the press
Guarantee offreedom of assembly
Guarantee of theright to petition for redress of grievances
Guarantee offreedom of expressive association
Freedom from quartering of soldiers
In 1982, theSecond Circuit applied the Third Amendment to the states inEngblom v. Carey. This is a binding authority over the federal courts inConnecticut,New York, andVermont, but is only a persuasive authority over the other courts in the United States.
TheTenth 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
Warrant requirements
Right toindictment by agrand jury
Protection againstdouble jeopardy
Constitutional privilege againstself-incrimination
Right to Due Process of Law
Protection againsttaking of private property without just compensation
Right to aspeedy trial
Right to apublic trial
Right totrial by impartial jury
Right to ajury selected from residents of the state and district where the crime occurred
Right tonotice of accusations
Right toconfront adverse witnesses
Right to compulsory process (subpoenas) to obtain witness testimony
Right toassistance of counsel
Right tojury trial in civil cases
Protection againstexcessive bail
Protection againstexcessive fines
Protection againstcruel and unusual punishments
A similar legal doctrine to incorporation is that ofreverse incorporation. Whereas incorporation applies the Bill of Rights to the states through theEqual 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 theFifth Amendment.[41]For example, inBolling v. Sharpe,347 U.S.497 (1954), which was a companion case toBrown v. Board of Education, the schools of the District of Columbia were desegregated even though Washington is a federal enclave. Likewise, inAdarand Constructors, Inc. v. Peña515 U.S.200 (1995), an affirmative action program by the federal government was subjected to strict scrutiny based on equal protection.[citation needed]
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.
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.
