Incorporation of the Bill of Rights

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 1925, 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.

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.

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. 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). 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. The 14th Amendment has vastly expanded civil rights protections and is cited in more litigation than any other amendment to the U.S. Constitution.

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 some exceptions.

https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights