Incorporation of the Bill of Rights

Incorporation, in U.S. law, is the process by which American courts have applied portions of the U.S. Bill of Rights to the states. When it was first ratified, the Bill of Rights only protected the rights it enumerated from federal infringement, allowing states and local governments to abridge them. However, beginning in 1897 with Chicago, Burlington and Quincy Railroad v. City of Chicago, various portions have been held to be incorporated against state and local government through the Fourteenth Amendment.

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 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 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.[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."

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, 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).[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 all of the protections in the Bill of Rights, as well as other, unenumerated rights.[4] 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.[5][6][7] 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.[5][6][7][8] 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.”[8][9] This is why “fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.”[8][9] The 14th Amendment has vastly expanded civil rights protections and is cited in more litigation than any other amendment to the U.S. Constitution.[10]

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.[11] 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 state governments).[12] 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.[12] 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.[13] 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."[14]

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.[15] 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.[16] 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.[17]

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.[18] 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.[19]

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,[20] however as it is a concurring opinion and not the majority opinion in the case, it holds no legal weight 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.

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."[21] 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

Amendment II

Right to keep and bear arms

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 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).

The "problem" is that the third amendment, by and large, is the only one that is almost never violated by the states and Federal government, almost nobody is suing over the issue, so very few cases are being heard. The U.S. Supreme Court has never had a third amendment case appealed to it.

Amendment IV

Unreasonable search and seizure

Warrant requirements

Amendment V

Right to indictment by a grand jury

Protection against double jeopardy

Constitutional privilege against self-incrimination

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

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

Right to notice of accusations

Right to confront adverse witnesses

Right to compulsory process (subpoenas) to obtain witness testimony

Right to assistance of counsel

Amendment VII

Right to jury trial in civil cases

Re-Examination Clause

Amendment VIII

Protection against excessive bail

Protection against excessive fines

Protection against cruel and unusual punishments

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 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.[30] 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. 1 2 Jeffrey Jowell and Jonathan Cooper (2002). Understanding Human Rights Principles. Oxford and Portland, Oregon: Hart Publishing. p. 180. Retrieved 16 March 2017.
  6. 1 2 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. Retrieved 16 March 2017.
  7. 1 2 Jayawickrama, Nihal (2002). The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence. Cambridge: Cambridge University Press. p. 98. Retrieved 16 March 2017.
  8. 1 2 3 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."”).
  9. 1 2 Obergefell v. Hodges, No. 14-556, slip op. at 24 (U.S. June 26, 2015).
  10. ↑ "Primary Documents in American History", Library of Congress
  11. ↑ Steffen W. Schmidt, Mack C. Shelley, Barbara A. Bardes: American Government and Politics Today, Page 71. Thomson Wadsworth, 2004.
  12. 1 2 Amar, Akhil Reed: The Bill of Rights: Creation and Reconstruction , Page 234. Yale University Press, 1998
  13. ↑ 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.
  14. ↑ Curtis, Michael Kent (1994) [1986]. No State Shall Abridge (Second printing in paperback ed.). Duke University Press. p. 202. ISBN 0-8223-0599-2.
  15. ↑ 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.
  16. ↑ See Pilon, Roger. "Lawless Judges: Refocusing the Issue for Conservatives," Georgetown Journal of Law and Public Policy Volume II, page 21 (2000).
  17. ↑ Adamson v. California, 332 U.S. 46 (1947) (Black, J., dissenting).
  18. ↑ 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).
  19. ↑ Slaughter-House Cases, 83 U.S. 36 (1873).
  20. ↑ Privileges or Immunities Clause alive again
  21. ↑ Laurence H. Tribe, American Constitutional Law 776 n. 14 (2nd ed. 1998)
  22. ↑ 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 0-465-05164-2.Nebraska Law Review Article.
  23. ↑ Hartman, Gary, Roy M. Mersky, and 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.
  24. ↑ "Pearson Prentice Hall: Supreme Court Cases - Edwards v. South Carolina, 1963". Pearson Education, Inc. Pearson Education, Inc. Retrieved 15 August 2013.
  25. ↑ Vance, Laurence M. "Does the First Amendment Protect the Freedom of Association? The Future of Freedom Foundation". The Future of Freedom Foundation.
  26. ↑ 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.
  27. ↑ Robert L. Cord, "Neo-Incorporation: The Burger Court and the Due Process Clause of the Fourteenth Amendment," Fordham Law Review 44, no. 2 (1975): 215-230, accessed February 13, 2015.
  28. 1 2 3 4 "Bill of Rights Institute: Incorporation". Bill of Rights Center. Archived from the original on 12 October 2013. Retrieved 11 October 2013.
  29. ↑ "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.
  30. ↑ Columbia Law Review, May 2004

Further reading

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