{{Short description|Application of the U.S. Bill of Rights to states and their local governments}} {{Use American English|date=January 2019}}{{Use mdy dates|date=March 2024}} {{United States constitutional law}} In [[United States constitutional law]], '''incorporation''' is the doctrine by which portions of the [[United States Bill of Rights|Bill of Rights]] have been made applicable to the [[U.S. state|state]]s. When the Bill of Rights was ratified, the courts held that its protections extended only to the actions of the [[Federal government of the United States|federal government]] and that the Bill of Rights did not place limitations on the authority of the [[State governments of the United States|states]] and their [[Local government in the United States|local governments]]. However, the post–[[American Civil War|Civil War]] era, beginning in 1865 with the [[Thirteenth Amendment to the United States Constitution|Thirteenth Amendment]], which declared the abolition of [[Slavery in the United States|slavery]], 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 the [[Due Process Clause]] of the [[Fourteenth Amendment to the United States Constitution|Fourteenth Amendment]] of 1868.
Prior to the ratification of the Fourteenth Amendment and the development of the incorporation doctrine, the [[Supreme Court of the United States|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 Amendment to the United States Constitution|First]] and [[Second Amendment to the United States Constitution|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.
==History== ===Background=== {{quote box |quote = No person shall ... be deprived of life, liberty, or property, without due process of law ... |source = —[[Due Process Clause]] of the [[Fifth Amendment to the United States Constitution|Fifth Amendment]] (1791) |width = 25% }}
The United States Bill of Rights is the first ten [[list of amendments to the United States Constitution|amendments]] to the [[United States Constitution]].<ref name="NA-CoF">{{cite web |title=The Charters of Freedom: The Bill of Rights|url=https://www.archives.gov/exhibits/charters/bill_of_rights.html|publisher=[[National Archives and Records Administration]]|access-date=October 4, 2015|location=Washington D.C.}}</ref> Proposed following the oftentimes bitter 1787–88 battle over ratification of the United States Constitution, and crafted to address the objections raised by [[Anti-Federalism|Anti-Federalists]], the Bill of Rights amendments add to the Constitution specific guarantees of personal freedoms and [[natural and legal rights|rights]], 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 the [[Popular sovereignty|people]]. The concepts enumerated in these amendments are built upon those found in several earlier documents, including the [[Virginia Declaration of Rights]] and the English [[Bill of Rights 1689]], along with earlier documents such as [[Magna Carta]] (1215). Although [[James 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.
{{quote box |quote = [N]or shall any State deprive any person of life, liberty, or property, without due process of law ... |source = —[[Due Process Clause]] of the [[Fourteenth Amendment to the United States Constitution|Fourteenth Amendment]] (1868) |width = 25% }}
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 [[State constitution (United States)|constitutions of each state]]. After the [[American Civil War|Civil War]], Congress and the states ratified the [[Fourteenth Amendment to the United States Constitution|Fourteenth Amendment]], which included the [[Due Process Clause]] and the [[Privileges or Immunities Clause]]. While the [[Fifth Amendment to the United States Constitution|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 Four of the United States Constitution|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.<ref name="vchu1">{{cite web|last1=Chu|first1=Vivian|title=The Second Amendment and Incorporation: An Overview of Recent Appellate Cases|url=https://fas.org/sgp/crs/misc/R40820.pdf|access-date=13 October 2017|publisher=Congressional Research Service|date=21 September 2009|archive-url=https://web.archive.org/web/20221006235014/https://sgp.fas.org/crs/misc/R40820.pdf|archive-date=October 6, 2022}}</ref>
===Incorporation=== The doctrine of incorporation has been traced back to either ''[[Chicago, Burlington & Quincy Railroad Co. v. City of Chicago]]'' (1897) or, more commonly, to ''[[Gitlow v. New York]]'' (1925). In ''Chicago Railroad'', the Supreme Court appeared to require some form of [[Fifth Amendment to the United States Constitution|just compensation]] for property appropriated by state or local authorities, which was also provided by a state statute. "Although the Court did not speak explicitly of the Fourteenth Amendment incorporating the takings clause, that was the practical effect of the decision."<ref>{{cite book|last=Chemerinsky|first=Erwin|date=2023|title=Constitutional Law: Principles and Policies|edition=7th|isbn=978-1-5438-5759-7|publisher=Aspen Publishing|location=Frederick, Maryland|page=561}}</ref> In ''Gitlow'', the Court expressly incorporated the [[First Amendment to the United States Constitution|First Amendment]] against the states, and expressly held that States were bound to protect freedom of speech. The role of the Fourteenth Amendment in protecting the rights in the Bill of Rights was raised in some earlier cases, in which litigants argued that some of those rights were "fundamental and essential rights," but those challengers did not expressly argue that the Fourteenth Amendment incorporated them against the states.<ref>{{cite web|title=Early Doctrine on Incorporation of the Bill of Rights|website=Constitution Annotated|publisher=[[United States Congress]]|url=https://constitution.congress.gov/browse/essay/amdt14-S1-4-2/ALDE_00013745/|access-date=May 14, 2026}}</ref>
Since the early twentieth century, the Court has steadily incorporated most of the significant provisions of the Bill of Rights.<ref name=":0">''See, e.g''., Gary Bugh (2023). ''Incorporation of the Bill of Rights: An Accounting of the Supreme Court's Extension of Federal Civil Liberties to the States''. New York: Peter Lang {{ISBN|978-1-4331-9631-7}}; [http://www.crf-usa.org/bill-of-rights-in-action/bria-7-4-b-the-14th-amendment-and-the-second-bill-of-rights Constitutional Rights Foundation] discussion, giving summary, extensive WWW links and timeline; [http://www.encyclopedia.com/doc/1O184-IncorporationDoctrine.html Encyclopedia.com Article];[https://archive.today/20120713081208/http://google.com/search?q=cache:PUp1ICnRalgJ:lawreview.byu.edu/archives/1987/3/cor.pdf+incorporation+doctrine&cd=36&hl=en&ct=clnk&gl=us BYU Law Review Article]</ref> Provisions that the Supreme Court has not specifically incorporated include the [[Fifth Amendment to the United States Constitution|Fifth Amendment]] right to an indictment by a [[grand jury]], and the [[Seventh Amendment to the United States Constitution|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 declined to apply new procedural constitutional rights retroactively against the states in criminal cases in ''[[Teague v. Lane]]'', {{ussc|489|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.<ref>[http://memory.loc.gov/ammem/amlaw/lwcglink.html#anchor39 Congressional Globe: Debates and Proceedings, 1833–1873]</ref> 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).<ref>[https://supct.law.cornell.edu/supct/html/historics/USSC_CR_0332_0046_ZD.html ''Adamson v. California''], 332 U.S. 46, 92-118 (1947)</ref> 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 against the [[U.S. state|States]] almost all of the protections in the Bill of Rights, as well as other, unenumerated rights.<ref name="loc.gov">[https://www.loc.gov/rr/program/bib/ourdocs/14thamendment.html "Primary Documents in American History"], Library of Congress</ref> The [[United States Bill of Rights|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.<ref name="Jowell&Cooper2001">{{cite book|author1=Jeffrey Jowell |author2=Jonathan Cooper|title=Understanding Human Rights Principles|publisher=Hart Publishing|location=Oxford and Portland, Oregon|page=180|url=https://books.google.com/books?id=gtzbBAAAQBAJ&q=West+Virginia+State+Board+of+Education+v.+Barnette+The+very+purpose+of+a+Bill+of+Rights+was+to+withdraw+certain+subjects+from+the+vicissitudes+of+political+controversy&pg=PA180|access-date=16 March 2017|year=2002|isbn=9781847313157}}</ref><ref name="Loveland2015">{{cite book|last1=Loveland|first1=Ian|title=Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction|publisher=Oxford University Press|location=London|page=559|edition=Seventh|chapter-url=https://books.google.com/books?id=y7S6BwAAQBAJ&q=West+Virginia+State+Board+of+Education+v.+Barnette+The+very+purpose+of+a+Bill+of+Rights+was+to+withdraw+certain+subjects+from+the+vicissitudes+of+political+controversy&pg=PA559|access-date=16 March 2017|chapter=Chapter 18 - Human Rights I: Traditional Perspectives|year=2002|isbn=9780198709039}}</ref><ref name="Jayawickrama2002">{{cite book|last1=Jayawickrama|first1=Nihal|title=The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence|publisher=Cambridge University Press|location=Cambridge|page=98|access-date=16 March 2017|year=2002|url=https://books.google.com/books?id=kowFdvofCckC&q=West+Virginia+State+Board+of+Education+v.+Barnette+The+very+purpose+of+a+Bill+of+Rights+was+to+withdraw+certain+subjects+from+the+vicissitudes+of+political+controversy&pg=PA98|isbn=9780521780421}}</ref> The Supreme Court for example concluded in the ''[[West Virginia State Board of Education v. Barnette]]'' (1943) case that the founders intended the [[United States Bill of Rights|Bill of Rights]] to put some rights out of reach from majorities, ensuring that some liberties would endure beyond political majorities.<ref name="Jowell&Cooper2001"/><ref name="Loveland2015"/><ref name="Jayawickrama2002"/><ref name="Jackson1943">{{cite court|litigants=West Virginia State Board of Education v. Barnette|vol=319|reporter=U.S.|opinion=624|pinpoint=Majority Opinion, item 3|court=US|date=1943|url=http://laws.findlaw.com/us/319/624.html|quote=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.|archive-url=https://web.archive.org/web/20081014083851/http://laws.findlaw.com/US/319/624.html|url-status=dead}}</ref> 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."<ref name="Jackson1943" /><ref name="Obergefell2015" /> This is why "fundamental rights may not be submitted to a vote; they depend on the outcome of no elections."<ref name="Jackson1943" /><ref name="Obergefell2015">''[[Obergefell v. Hodges]]'', No. 14-556, [https://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf slip op.] {{Webarchive|url=https://web.archive.org/web/20191002050103/https://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf |date=2019-10-02 }} at 24 (U.S. June 26, 2015).</ref> The 14th Amendment has vastly expanded [[civil rights]] protections and is cited in more litigation than any other amendment to the U.S. Constitution.<ref name="loc.gov"/>
===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.<ref>Steffen W. Schmidt, Mack C. Shelley, Barbara A. Bardes: ''American Government and Politics Today'', Page 71. Thomson Wadsworth, 2004.</ref> A dissenting school of thought championed by [[Associate Justice of the Supreme Court of the United States|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.<ref name="Amar234">Amar, Akhil Reed: ''[https://books.google.com/books?id=ia-B5dXoWKEC&dq=bill%20of%20rights%20creation%20and%20reconstruction&pg=PA234 The Bill of Rights: Creation and Reconstruction] '', Page 234. Yale University Press, 1998</ref> 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 "[[unenumerated rights|fundamental rights]]" that might be based on the [[Ninth Amendment to the United States Constitution|Ninth Amendment]]. The [[Tenth Amendment to the United States Constitution|Tenth Amendment]] was excluded from total incorporation as well, due to it already being patently concerned with the power of the states.<ref name="Amar234" /> 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.<ref name="Amar234"/> 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]]''.<ref>{{cite book | last = Curtis | first = Michael Kent | title = No State Shall Abridge | edition = Second printing in paperback | orig-year = 1986 | year = 1994 | publisher = Duke University Press | pages = [https://archive.org/details/tigerliliesameri0000daws/page/5 5, 202] | isbn = 0-8223-0599-2 | url = https://archive.org/details/tigerliliesameri0000daws/page/5 }}</ref> 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."<ref>{{cite book | last = Curtis | first = Michael Kent | title = No State Shall Abridge | edition = Second printing in paperback | orig-year = 1986 | year = 1994 | publisher = Duke University Press | isbn = 0-8223-0599-2 | page = [https://archive.org/details/tigerliliesameri0000daws/page/202 202] | url = https://archive.org/details/tigerliliesameri0000daws/page/202 }}</ref>
===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 [[William Henry Moody|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 [[Benjamin Cardozo|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=== {{quote box |quote = No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. ... |source = —[[Privileges or Immunities Clause]] of the [[Fourteenth Amendment to the United States Constitution|Fourteenth Amendment]] |width = 25% }}
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.<ref>See Doherty, Brian. "[http://reason.com/archives/2009/12/02/killing-slaughterhouse 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.</ref> 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.<ref>See Pilon, Roger. "[http://www.cato.org/pubs/articles/pilon_gtwnfs_lawlessjudging.pdf Lawless Judges: Refocusing the Issue for Conservatives]," ''Georgetown Journal of Law and Public Policy'' Volume II, page 21 (2000).</ref> 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:
{{blockquote|[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.<ref>''Adamson v. California'', [http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=332&page=46 332 U.S. 46] (1947) (Black, J., dissenting).</ref>}}
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.<ref>See Wildenthal, Bryan. "[https://ssrn.com/abstract=229228 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).</ref> In [[obiter dictum|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.<ref>''[http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=83&page=36 Slaughter-House Cases]'', 83 U.S. 36 (1873).</ref>
In the 2010 landmark case ''[[McDonald v. Chicago]]'', the Supreme Court declared the [[Second Amendment to the United States Constitution|Second Amendment]] is incorporated through the Due Process Clause. However, Justice [[Clarence Thomas|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.<ref>McDonald v. City of Chi., 561 U.S. 742, 806 (2010) (Thomas, J., dissenting)</ref> No other justice attempted to question his rationale. This is considered by some as a "revival" of the Privileges or Immunities Clause,<ref>[http://www.scotusblog.com/2010/06/privileges-or-immunities-clause-alive-again/ Privileges or Immunities Clause alive again]</ref> 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 the ''Slaughterhouse Cases''.
In the 2019 case ''[[Timbs v. Indiana]]'', the Supreme Court, citing ''McDonald,'' ruled that the [[Eighth Amendment to the United States Constitution|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 [[Neil Gorsuch|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.<ref name=17-1091_5536>[https://www.supremecourt.gov/opinions/18pdf/17-1091_5536.pdf Timbs v. Indiana, 586 U.S. Argued November 28, 2018—Decided February 20, 2019]</ref>
==== 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's view, incorporation through Privileges or Immunities would allow the Court to exclude rights from incorporation that had erroneously been deemed fundamental in previous decisions.<ref name=17-1091_5536/>
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.<ref>{{cite journal|url= https://texaslawreview.org/a-distinction-with-a-difference/ |author=William J. Aceves |title=A Distinction with a Difference: Rights, Privileges, and the Fourteenth Amendment |volume=98 |journal=Tex. L. Rev.|date=9 September 2019 }}</ref>
== 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 to the United States Constitution|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."<ref>{{cite book|author=Laurence H. Tribe |title=American Constitutional Law |at=p. 776 n. 14 |edition=2nd |date=1998}}</ref> The [[Tenth Amendment to the United States Constitution|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 Clause|establishment of religion]]''' * This provision '''has been incorporated''' against the states. ''See [[Everson v. Board of Education]]'', {{ussc|330|1|1947}}.<ref>Justice [[Clarence Thomas|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 {{cite book|title = Liberty of conscience: in defense of America's tradition of religious equality|url = https://archive.org/details/libertyofconscie0000nuss|url-access = registration|first = Martha Craven | last = Nussbaum | author-link = Martha Craven Nussbaum | publisher = Basic Books | year= 2008 | pages = [https://archive.org/details/libertyofconscie0000nuss/page/105 105] et seq. and Chapter 4| isbn = 978-0-465-05164-9}} {{cite journal|url= http://law.unl.edu/sites/unl.edu.college-of-law.law/files/facstaff/faculty/resident/docs/Thomas_ArticleDuncan2010.pdf|title=JUSTICE THOMAS AND PARTIAL INCORPORATION OF THE ESTABLISHMENT CLAUSE: HEREIN OF STRUCTURAL LIMITATIONS, LIBERTY INTERESTS, AND TAKING INCORPORATION SERIOUSLY|author=Richard F. Duncan|date=2007|journal=Regent University Law Review|volume=20|pages=37–56|url-status=dead|archive-url= https://web.archive.org/web/20130115120648/http://law.unl.edu/sites/unl.edu.college-of-law.law/files/facstaff/faculty/resident/docs/Thomas_ArticleDuncan2010.pdf|archive-date=2013-01-15 }}</ref> '''Guarantee of [[Free Exercise Clause|free exercise of religion]]''' * This provision '''has been incorporated''' against the states. ''See [[Cantwell v. Connecticut]]'', {{ussc|310|296|1940}}. '''Guarantee of [[freedom of speech]]''' * This provision '''has been incorporated''' against the states. ''See [[Gitlow v. New York]]'',<ref name="19250608Gitlow">{{cite web |title=Gitlow v. New York, 268 U.S. 652 (1925) at 268|url=https://supreme.justia.com/cases/federal/us/268/652/ |publisher=Justia US Supreme Court Center |access-date=August 2, 2020 |date=June 8, 1925 |quote="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."}}</ref> {{ussc|268|652|1925}} and ''[[Stromberg v. California]]'', {{ussc|283|359|1931}}. '''Guarantee of [[freedom of the press]]''' * This provision '''has been incorporated''' against the states. ''See [[Gitlow v. New York]]'',<ref name="19250608Gitlow" /> {{ussc|268|652|1925}} [[Near v. Minnesota]], {{ussc|283|697|1931}}. '''Guarantee of [[freedom of assembly]]''' * This provision '''has been incorporated''' against the states. ''See [[De Jonge v. Oregon]]'', {{ussc|299|353|1937}}. '''Guarantee of the [[right to petition in the United States|right to petition]] for redress of grievances''' * This provision '''has been incorporated''' against the states. ''See [[Edwards v. South Carolina]]'', {{ussc|372|229|1963}}.<ref>{{cite web|title=Landmark Supreme Court Cases: "Edwards v. South Carolina."|url=http://www.fofweb.com/History/HistRefMain.asp?iPin=LSCC0223&SID=2&DatabaseName=American+History+Online&InputText=%22Edwards+v+South+Carolina%22&SearchStyle=&dTitle=%3Ci%3EEdwards+v.+South+Carolina%3C%2Fi%3E&TabRecordType=All+Records&BioCountPass=0&SubCountPass=1&DocCountPass=1&ImgCountPass=0&MapCountPass=0&FedCountPass=&MedCountPass=0&NewsCountPass=0&RecPosition=1&AmericanData=Set&WomenData=&AFHCData=&IndianData=&WorldData=&AncientData=&GovernmentData=|publisher=Facts On File, Inc., 2004. American History Online.|access-date=15 August 2013|author=Gary Hartman|author2=Roy M. Mersky|author3=Cindy L. Tate|location=New York|year=2004}}</ref><ref>{{cite web|title=Pearson Prentice Hall: Supreme Court Cases - Edwards v. South Carolina, 1963|url=http://www.phschool.com/atschool/ss_web_codes/supreme_court_cases/edwards.html|work=Pearson Education, Inc.|publisher=Pearson Education, Inc.|access-date=15 August 2013}}</ref> '''Guarantee of [[freedom of association|freedom of expressive association]]''' * This right, though not in the words of the first amendment, was first mentioned in the case ''[[NAACP v. Alabama]]'', {{ussc|357|449|1958}}<ref>{{cite web|last=Vance|first=Laurence M.|title=Does the First Amendment Protect the Freedom of Association? The Future of Freedom Foundation|url=http://fff.org/explore-freedom/article/does-the-first-amendment-protect-the-freedom-of-association/|publisher=The Future of Freedom Foundation|date=May 9, 2012|archive-url=https://web.archive.org/web/20230617143642/https://www.fff.org/explore-freedom/article/does-the-first-amendment-protect-the-freedom-of-association/|archive-date=June 17, 2023}}</ref> and was at that time applied to the states. See also ''[[Roberts v. United States Jaycees]]'', {{ussc|468|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."
===Amendment II=== '''[[Second Amendment to the United States Constitution|Right to keep and bear arms]]''' * This right '''has been incorporated''' against the states. The Second Amendment was 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'' 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.
===Amendment III=== '''[[Third Amendment to the United States Constitution|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. The Supreme Court has not yet heard an appeal about applying this protection in all states.
In 1982, the [[United States Court of Appeals for the Second Circuit|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 (state)|New York]], and [[Vermont]], but is only a persuasive authority over the other courts in the United States.
The [[United States Court of Appeals for the Tenth Circuit|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=== '''[[Fourth Amendment to the United States Constitution|Unreasonable search and seizure]]''' * This right '''has been incorporated''' against the states by the Supreme Court's decision in ''[[Mapp v. Ohio]]'', {{ussc|367|643|1961}}, although there is ''[[Obiter dictum|dicta]]'' in ''[[Wolf v. Colorado]]'', {{ussc|338|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.
'''[[Warrant (law)|Warrant]] requirements''' * The various warrant requirements '''have been incorporated''' against the states. ''See [[Aguilar v. Texas]]'', {{ussc|378|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]]'', {{ussc|374|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). '''Protection against [[double jeopardy]]''' * This right '''has been incorporated''' against the states. ''See [[Benton v. Maryland]]'', {{ussc|395|784|1969}}. However, this is generally limited by the [[Double Jeopardy Clause#Dual sovereignty doctrine|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]],'' {{ussc|359|121|1959}}, ''[[Heath v. Alabama]],'' {{ussc|474|82|1985}}, ''[[Gamble v. United States]]'' (2019). '''Constitutional privilege against [[self-incrimination]]''' * This right '''has been incorporated''' against the states.<ref>Akhil Reed Amar and Renee Lettow Lerner, [http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1957&context=fss_papers "Fifth Amendment First Principles: The Self- Incrimination Clause"], ''Michigan Law Review'' 93 (1995): 857, accessed February 15, 2015.</ref><ref>{{cite journal|author=Robert L. Cord |url= http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2184&context=flr |title=Neo-Incorporation: The Burger Court and the Due Process Clause of the Fourteenth Amendment |journal=Fordham Law Review |volume=44 |issue=2 |date=1975 |pages=215–230 |access-date=February 13, 2015}}</ref> *# Self Incrimination in Court ''See [[Griffin v. California]]'', 380 U.S. 609 (1965), ''[[Malloy v. Hogan]]'', {{ussc|378|1|1964}}. *# Miranda ''See [[Miranda v. Arizona]]'', {{ussc|384|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 v. Arizona|Miranda]]'' warnings. Nevertheless, the Court has held that these warnings are a necessary prophylactic device, and thus required by the Fifth Amendment in order to introduce a suspect's statements against him or her as part of a prosecutor's case-in-chief whether in state or federal court. The Court has held in ''[[Vega v. Tekoh]]'' that failure to provide Miranda warnings does not, by itself, violate the Fifth Amendment. '''Right to Due Process of Law''' * This right has not formally been incorporated, with the Court reasoning that the Fourteenth Amendment already protects due process of law against state violation. It first defended the Fourteenth Amendment as protecting due process of law at the state level in ''Scott v. McNeal'', 154 U.S. 34, at 45 (1894).<ref>{{Cite book |last=Bugh |first=Gary |title=Incorporation of the Bill of Rights: An Accounting of the Supreme Court's Extension of Federal Civil Liberties to the States |publisher=Peter Lang |year=2023 |isbn=9781433196317 |location=New York |pages=97}}</ref>
'''Protection against [[Eminent domain in the United States|taking of private property]] without just compensation''' * This right '''has been incorporated''' against the states. See [[Chicago, B. & Q. R. Co. v. Chicago|''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]]'', {{ussc|386|213|1967}}. '''Right to a [[Public trial clause|public trial]]''' * This right '''has been incorporated''' against the states. ''See [[In re Oliver]]'', {{ussc|333|257|1948}}. '''Right to [[Jury trial|trial by impartial jury]]''' * This right '''has been incorporated''' against the states. ''See [[Duncan v. Louisiana]]'', {{ussc|391|145|1968}}, which guarantees the right to a jury trial in non-petty cases.<ref name="BORC" /> ''See also [[s:Parker v. Gladden/Opinion of the Court|Parker v. Gladden]]'', {{ussc|385|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''' ....'"<ref name="BORC" /> {{dead link|date=May 2017}} 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]]'', {{ussc|399|78|1970}}. Furthermore, there is no right to a jury trial in juvenile delinquency proceedings held in state court. ''See [[McKeiver v. Pennsylvania]]'', {{ussc|403|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.<ref name="cnn decision">{{cite web | url = https://www.cnn.com/2020/04/20/politics/scotus-jury-verdict-criminal-trial/index.html |title = Supreme Court says unanimous jury verdicts required in state criminal trials for serious offenses | first = Ariana | last= de Vogue | date = April 20, 2020 | access-date= April 20, 2020 | work = [[CNN]] }}</ref> '''Right to a [[Vicinage Clause|jury selected from residents of the state and district where the crime occurred]]''' * This right '''has ''not been'' incorporated''' against the states. ''See Zicarelli v. Dietz'', 633 F.2d 312 (3rd Cir. 1980). In ''Zicarelli v. Gray'', 543 F.2d 466 (3d Cir. 1976), a lower federal court "assumed" that state governments could not violate the vicinage right.<ref name=":0" /> The Supreme Court has not yet heard a case concerning application of this federal right to the state level. '''Right to [[Sixth Amendment to the United States Constitution#Notice of accusation|notice of accusations]]''' * This right '''has been incorporated''' against the states. ''See [[In re Oliver]]'', {{ussc|333|257|1948}}. ''See also [[Rabe v. Washington]]'', {{ussc|405|313|1972}}.<ref name="BORC" /> '''Right to [[Confrontation Clause|confront adverse witnesses]]''' * This right '''has been incorporated''' against the states. ''See [[Pointer v. Texas]]'', {{ussc|380|400|1965}}. '''Right to compulsory process (subpoenas) to obtain witness testimony''' * This right '''has been incorporated''' against the states. ''See [[Washington v. Texas]]'', {{ussc|388|14|1967}}. '''Right to [[Sixth Amendment's right to counsel|assistance of counsel]]''' * This right '''has been incorporated''' against the states. ''See [[Powell v. Alabama]]'' {{ussc|287|45|1932}}, for capital cases, ''see [[Gideon v. Wainwright]]'', {{ussc|372|335|1963}} for all felony cases, and ''see [[Argersinger v. Hamlin]]'', {{ussc|407|25|1972}} for imprisonable misdemeanors.<ref name="BORC">{{cite web|title=Bill of Rights Institute: Incorporation |url=http://billofrightsinstitute.org/resources/educator-resources/landmark-cases/incorporation/ |publisher=Bill of Rights Center |access-date=11 October 2013 |url-status=dead |archive-url=https://web.archive.org/web/20131012053838/http://billofrightsinstitute.org/resources/educator-resources/landmark-cases/incorporation/ |archive-date=12 October 2013 }}</ref> 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'' ''[https://www.supremecourt.gov/opinions/21pdf/20-1009_19m2.pdf Shinn v. Martinez Ramirez]'', 596 U.S. ___ (2022).
===Amendment VII=== '''Right to [[Seventh Amendment to the United States Constitution|jury trial in civil cases]]''' * This right '''has ''not been'' incorporated''' against the states.<ref name="analysis">{{cite web|title=The Constitution of the United States of America: Analysis, and Interpretation - 1992 Edition → Amendments to the Constitution → Seventh Amendment - Civil Trials|url=http://www.gpo.gov/fdsys/pkg/GPO-CONAN-1992/html/GPO-CONAN-1992-10-8.htm|work=U.S. Government Printing Office|publisher=U.S. Government Printing Office|access-date=4 July 2013|pages=1453|year=1992|quote="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."}}</ref> ''See'' ''Dohany v. Rogers'', {{ussc|281|362|1930}}, ''Walker v. Sauvinet'', 92 U.S. 90 (1876). In ''Walker'', Justice Morrison Waite ruled that the Fourteenth Amendment did not compel states to provide jury trials for civil matters because states "are left to regulate trials in their own courts in their own way. A trial by jury in suits at common law pending in the State courts is not, therefore, a privilege or immunity of national citizenship."<ref>''Walker'', 92 U.S. 90, at 92.</ref> '''[[Seventh Amendment to the United States Constitution#Re-examination of facts|Re-Examination Clause]]''' * This right '''has ''not been'' incorporated''' against the states.<ref name="analysis"></ref> ''See The Justices v. Murray'', 76 U.S. (9 Wall.) 274 (1870), ''and [[Minneapolis & St. Louis R. Co. v. Bombolis]]'', {{ussc|241|211|1916}}. The right prevents federal courts from retrying a civil jury case without following common law procedures, but not state courts. As the Court ruled in ''Justices'', "the seventh amendment could not be invoked in a State court to prohibit it from re-examining, on a writ of error, facts that had been tried by a jury in the court below."<ref>''Justices'', 76 U.S. 274, at, 278.</ref>
===Amendment VIII=== '''Protection against [[Excessive Bail Clause|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]]'', {{ussc|455|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 [[Eighth Amendment to the United States Constitution|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."<ref>{{cite web | url = https://www.cnn.com/2019/02/20/politics/ruth-bader-ginsburg-opinion-cancer-surgery-timbs-indiana/index.html | title = Now we know what Ruth Bader Ginsburg was doing | first1= Ariane | last1= de Vogue | first2= Sophie | last2= Tatum | date =February 20, 2019 | access-date = February 20, 2019 | work =[[CNN]] |archive-url=https://web.archive.org/web/20190228125425/https://edition.cnn.com/2019/02/20/politics/ruth-bader-ginsburg-opinion-cancer-surgery-timbs-indiana/index.html|archive-date=February 28, 2019}}</ref><ref>{{cite web | url = https://www.nytimes.com/2019/02/20/us/politics/civil-asset-forfeiture-supreme-court.html | title= Supreme Court Puts Limits on Police Power to Seize Private Property | first = Adam | last= Liptak | date = February 20, 2019 | access-date = February 20, 2019 | work = [[The New York Times]] |archive-url=https://web.archive.org/web/20200410073041/https://www.nytimes.com/2019/02/20/us/politics/civil-asset-forfeiture-supreme-court.html|archive-date=April 10, 2020}}</ref> '''Protection against [[cruel and unusual punishment]]s''' * This right '''has been incorporated''' against the states. ''See [[Robinson v. California]]'', {{ussc|370|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== {{See also|Schneider v. Rusk|Frontiero v. Richardson|Weinberger v. Wiesenfeld|Califano v. Goldfarb|Bolling v. Sharpe|United States v. Windsor|l1=''Schneider v. Rusk''|l2=''Frontiero v. Richardson''|l3=''Weinberger v. Wiesenfeld''|l4=''Califano v. Goldfarb''|l5=''Bolling v. Sharpe''|16=''United States v. Windsor''}}
A similar legal doctrine to incorporation is that of '''reverse incorporation'''. Whereas incorporation applies the Bill of Rights to the states through the [[Equal 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 the [[Fifth Amendment to the United States Constitution|Fifth Amendment]].<ref>[https://ssrn.com/abstract=464847 Columbia Law Review, May 2004]</ref> For example, in ''[[Bolling v. Sharpe]]'', {{ussc|347|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]]'' {{ussc|515|200|1995}}, an affirmative action program by the federal government was subjected to strict scrutiny based on equal protection.{{citation needed|reason=We need a secondary source that specifically verifies that Bolling and Adarand Constructors are examples of reverse incorporation.|date=March 2021}}
==References== {{reflist|30em}}
==Further reading== * Gary Bugh (2023). ''Incorporation of the Bill of Rights: An Accounting of the Supreme Court's Extension of Federal Civil Liberties to the States''. New York: Peter Lang. * 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").{{cite web|url=http://w3.uchastings.edu/plri/fall94/mcclen2.html |title=Limits On The Power Of States To Regulate Firearms |publisher=W3.uchastings.edu |access-date=2008-09-06 |url-status=dead |archive-url=https://web.archive.org/web/20071013231136/http://w3.uchastings.edu/plri/fall94/mcclen2.html |archive-date=2007-10-13 }} * ''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).
{{US Constitution}}
[[Category:United States constitutional law]] [[Category:Legal history of the United States]] [[Category:Incorporation case law| ]] [[Category:Fourteenth Amendment to the United States Constitution]]