Incorporation (Bill of Rights)

Incorporation (Bill of Rights)

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The incorporation of the Bill of Rights (or incorporation for short) is the process by which American courts have applied portions of the U.S. Bill of Rights
United States Bill of Rights
The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and...

 to the states
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...

. Prior to the 1890s, the Bill of Rights was held only to apply to the federal government
Federal government of the United States
The federal government of the United States is the national government of the constitutional republic of fifty states that is the United States of America. The federal government comprises three distinct branches of government: a legislative, an executive and a judiciary. These branches and...

. Under the incorporation doctrine, most provisions of the Bill of Rights now also apply to the state and local governments, by virtue of the due process clause
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...

 of the Fourteenth Amendment of the Constitution
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...

.

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
Barron v. Baltimore
Barron v. Mayor of Baltimore, 32 U.S. 243 established a precedent on whether the United States Bill of Rights could be applied to state governments.John Barron co-owned a profitable wharf in the Baltimore harbor...

 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
United States v. Cruikshank
United States v. Cruikshank, 92 U.S. 542 was an important United States Supreme Court decision in United States constitutional law, one of the earliest to deal with the application of the Bill of Rights to state governments following the adoption of the Fourteenth Amendment.-Background:On Easter...

, still held that the First
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...

 and Second Amendment
Second Amendment to the United States Constitution
The Second Amendment to the United States Constitution is the part of the United States Bill of Rights that protects the right of the people to keep and bear arms. It was adopted on December 15, 1791, along with the rest of the Bill of Rights.In 2008 and 2010, the Supreme Court issued two Second...

 did not apply to state governments. However, beginning in the 1890s, a series of United States Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

 decisions interpreted the Fourteenth Amendment to "incorporate" most portions of the Bill of Rights, making these portions, for the first time, enforceable against the state governments.

History


The genesis of incorporation has been traced back to either Chicago, Burlington and Quincy Railroad v. City of Chicago
Chicago, B. & Q. R. Co. v. Chicago
Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 , incorporated the takings clause of the 5th amendment into the due process clause of the 14th amendment by requiring states to provide just compensation for seizing private property. This was the first supreme court case...

 (1897) in which the Supreme Court appeared to require some form of just compensation
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...

 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
Gitlow v. New York
Gitlow v. New York, , was a decision by the United States Supreme Court, which ruled that the Fourteenth Amendment to the United States Constitution had extended the reach of certain provisions of the First Amendment—specifically the provisions protecting freedom of speech and freedom of the...

 (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
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...

 right to an indictment by a grand jury
Grand jury
A grand jury is a type of jury that determines whether a criminal indictment will issue. Currently, only the United States retains grand juries, although some other common law jurisdictions formerly employed them, and most other jurisdictions employ some other type of preliminary hearing...

, and the Seventh Amendment
Seventh Amendment to the United States Constitution
The Seventh Amendment to the United States Constitution, which was ratified as part of the Bill of Rights, codifies the right to a jury trial in certain civil cases. However, in some civil cases, the Supreme Court has not incorporated the right to a jury trial to the states in the fashion which...

 right to a jury trial
Jury trial
A jury trial is a legal proceeding in which a jury either makes a decision or makes findings of fact which are then applied by a judge...

 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
Teague v. Lane
Teague v. Lane, , was a United States Supreme Court case dealing with the application of newly announced rules of law in habeas corpus proceedings....

) with limited exceptions, and it has waived constitutional requirements if the states can prove that a constitutional violation was "harmless beyond a reasonable doubt."

There are, however, some substantive guarantees whose incorporation the Supreme Court has not yet ruled on—for example, the Third Amendment right against quartering soldiers in private homes except in wartime as provided by law.

Rep. John Bingham
John Bingham
John Armor Bingham was a Republican congressman from Ohio, America, judge advocate in the trial of the Abraham Lincoln assassination and a prosecutor in the impeachment trials of Andrew Johnson...

, 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. Until the 1947 case of Adamson v. California
Adamson v. California
Adamson v. California, 332 U.S. 46 was a United States Supreme Court case regarding the incorporation of the Fifth Amendment of the Bill of Rights. Its decision is part of a long line of cases that eventually led to the Selective Incorporation Doctrine.-Background:In Adamson v...

, Supreme Court Justice Hugo Black
Hugo Black
Hugo Lafayette Black was an American politician and jurist. A member of the Democratic Party, Black represented Alabama in the United States Senate from 1927 to 1937, and served as an Associate Justice of the Supreme Court of the United States from 1937 to 1971. Black was nominated to the Supreme...

 argued in his dissent that the framers' intent should control the Court's interpretation of the 14th Amendment, and he attached a lengthy appendix that quoted extensively from Bingham's congressional testimony. Although the Adamson Court declined to adopt Black's interpretation, the Court during the following twenty-five years employed a doctrine of selective incorporation that succeeded in extending to the States almost of all of the protections in the Bill of Rights, as well as other, unenumerated rights. The 14th Amendment has vastly expanded civil rights
Civil rights
Civil and political rights are a class of rights that protect individuals' freedom from unwarranted infringement by governments and private organizations, and ensure one's ability to participate in the civil and political life of the state without discrimination or repression.Civil rights include...

 protections and is cited in more litigation than any other amendment to the U.S. Constitution.

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. A dissenting school of thought championed by Justice
Associate Justice of the Supreme Court of the United States
Associate Justices of the Supreme Court of the United States are the members of the Supreme Court of the United States other than the Chief Justice of the United States...

 Hugo Black
Hugo Black
Hugo Lafayette Black was an American politician and jurist. A member of the Democratic Party, Black represented Alabama in the United States Senate from 1927 to 1937, and served as an Associate Justice of the Supreme Court of the United States from 1937 to 1971. Black was nominated to the Supreme...

 supported that incorporation of specific rights, but urged incorporation of all specific rights instead of just some of them. Black was for so-called mechanical incorporation, or total incorporation, of Amendments 1 through 8 of the Bill of Rights (Amendments 9 and 10 being patently connected to the powers of the federal government alone). 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
Unenumerated rights
Unenumerated rights are sometimes defined as legal rights inferred from other legal rights that are officiated in a retrievable form codified by law institutions, such as in written constitutions, but are not themselves expressly coded or "enumerated" among the explicit writ of the law. ...

" that might be based on the Ninth Amendment
Ninth Amendment to the United States Constitution
The Ninth Amendment to the United States Constitution, which is part of the Bill of Rights, addresses rights of the people that are not specifically enumerated in the Constitution.-Text:-Adoption:When the U.S...

. 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. 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
Adamson v. California
Adamson v. California, 332 U.S. 46 was a United States Supreme Court case regarding the incorporation of the Fifth Amendment of the Bill of Rights. Its decision is part of a long line of cases that eventually led to the Selective Incorporation Doctrine.-Background:In Adamson v...

. This view was again expressed by Black in his concurrence in Duncan v. Louisiana
Duncan v. Louisiana
Duncan v. Louisiana, 391 U.S. 145 , was a significant United States Supreme Court decision which incorporated the Sixth Amendment right to a jury trial and applied it to the states.-Background of the case:...

: "'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."

Due process interpretation


Justice Felix Frankfurter
Felix Frankfurter
Felix Frankfurter was an Associate Justice of the United States Supreme Court.-Early life:Frankfurter was born into a Jewish family on November 15, 1882, in Vienna, Austria, then part of the Austro-Hungarian Empire in Europe. He was the third of six children of Leopold and Emma 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
Rochin v. California
Rochin v. California, 342 U.S. 165 , was a case decided by the Supreme Court of the United States that added behavior that "shocks the conscience" into tests of what violates due process...

 (1952). Such a selective incorporation approach followed that of Justice Moody
William Henry Moody
William Henry Moody was an American politician and jurist, who held positions in all three branches of the Government of the United States.-Biography:...

, who wrote in Twining v. New Jersey
Twining v. New Jersey
Twining v. New Jersey, 211 U.S. 78 , presented an early standard of the Supreme Court's Incorporation Doctrine by establishing that while certain rights enumerated in the Bill of Rights might apply to the states under the 14th amendment's due process clause, the 5th amendment's right against...

 (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
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...

, 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
Malloy v. Hogan
Malloy v. Hogan, 378 U.S. 1 , was a case in which the Supreme Court of the United States deemed a defendant's Fifth Amendment right against self-incrimination was applicable within state courts as well as federal courts...

 (1964). Similarly, Justice Cardozo stated in Palko v. Connecticut
Palko v. Connecticut
Palko v. Connecticut, , was a United States Supreme Court case concerning the incorporation of the Fifth Amendment protection against double jeopardy.-Background:...

 (1937) that the right against double jeopardy
Double jeopardy
Double jeopardy is a procedural defense that forbids a defendant from being tried again on the same, or similar charges following a legitimate acquittal or conviction...

 was not inherent to due process and so does not apply to the states, but that was overruled in Benton v. Maryland
Benton v. Maryland
Benton v. Maryland, , is a Supreme Court of the United States decision concerning double jeopardy. Benton ruled that the Double Jeopardy Clause of the Fifth Amendment does apply to the states. In doing so, Benton expressly overruled Palko v. Connecticut, .-Facts of the case:John Dalmer Benton was...

 (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
Privileges or Immunities Clause
The Privileges or Immunities Clause is Amendment XIV, Section 1, Clause 2 of the United States Constitution. It states:Along with the rest of the Fourteenth Amendment, this clause became part of the Constitution on July 9, 1868....

 would be a more appropriate textual basis than the due process clause for incorporation of the Bill of Rights. 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. In his dissent to Adamson v. California
Adamson v. California
Adamson v. California, 332 U.S. 46 was a United States Supreme Court case regarding the incorporation of the Fifth Amendment of the Bill of Rights. Its decision is part of a long line of cases that eventually led to the Selective Incorporation Doctrine.-Background:In Adamson v...

, however, Justice Hugo Black
Hugo Black
Hugo Lafayette Black was an American politician and jurist. A member of the Democratic Party, Black represented Alabama in the United States Senate from 1927 to 1937, and served as an Associate Justice of the Supreme Court of the United States from 1937 to 1971. Black was nominated to the Supreme...

 pointed out that the Slaughter-House Cases did not directly involve any right enumerated in the Constitution:
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. In dicta
Obiter dictum
Obiter dictum is Latin for a statement "said in passing". An obiter dictum is a remark or observation made by a judge that, although included in the body of the court's opinion, does not form a necessary part of the court's decision...

, 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.

In the 2010 landmark case McDonald v. Chicago
McDonald v. Chicago
McDonald v. Chicago, 561 U.S. 3025, 130 S.Ct. 3020 , was a landmark decision of the Supreme Court of the United States that determined whether the Second Amendment applies to the individual states...

, the Supreme Court declared the Second Amendment
Second Amendment to the United States Constitution
The Second Amendment to the United States Constitution is the part of the United States Bill of Rights that protects the right of the people to keep and bear arms. It was adopted on December 15, 1791, along with the rest of the Bill of Rights.In 2008 and 2010, the Supreme Court issued two Second...

 is incorporated through the Due Process Clause. However, Justice Thomas
Clarence Thomas
Clarence Thomas is an Associate Justice of the Supreme Court of the United States. Succeeding Thurgood Marshall, Thomas is the second African American to serve on the Court....

, 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.

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
Earl Warren
Earl Warren was the 14th Chief Justice of the United States.He is known for the sweeping decisions of the Warren Court, which ended school segregation and transformed many areas of American law, especially regarding the rights of the accused, ending public-school-sponsored prayer, and requiring...

 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
Ninth Amendment to the United States Constitution
The Ninth Amendment to the United States Constitution, which is part of the Bill of Rights, addresses rights of the people that are not specifically enumerated in the Constitution.-Text:-Adoption:When the U.S...

 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." The Tenth Amendment
Tenth Amendment to the United States Constitution
The Tenth Amendment to the United States Constitution, which is part of the Bill of Rights, was ratified on December 15, 1791...

 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
Establishment Clause of the First Amendment
The Establishment Clause is the first of several pronouncements in the First Amendment to the United States Constitution, stating, Together with the Free Exercise Clause The Establishment Clause is the first of several pronouncements in the First Amendment to the United States Constitution,...

  • This provision has been incorporated against the states. See Everson v. Board of Education
    Everson v. Board of Education
    Everson v. Board of Education, 330 U.S. 1 was a landmark decision of the United States Supreme Court which applied the religion clauses in the country's Bill of Rights to state as well as federal law...

    , .

Guarantee of free exercise of religion
Free Exercise Clause of the First Amendment
The Free Exercise Clause is the accompanying clause with the Establishment Clause of the First Amendment to the United States Constitution. The Establishment Clause and the Free Exercise Clause together read:...

  • This provision has been incorporated against the states. See Cantwell v. Connecticut
    Cantwell v. Connecticut
    Cantwell v. Connecticut, 310 U.S. 296 , was a United States Supreme Court decision that incorporated the First Amendment's protection of religious free exercise.-Background:...

    , .

Guarantee of freedom of speech
Freedom of speech
Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...

  • This provision has been incorporated against the states. See Gitlow v. New York
    Gitlow v. New York
    Gitlow v. New York, , was a decision by the United States Supreme Court, which ruled that the Fourteenth Amendment to the United States Constitution had extended the reach of certain provisions of the First Amendment—specifically the provisions protecting freedom of speech and freedom of the...

    , (dicta).

Guarantee of freedom of the press
Freedom of the press
Freedom of the press or freedom of the media is the freedom of communication and expression through vehicles including various electronic media and published materials...

  • This provision has been incorporated against the states. See Near v. Minnesota
    Near v. Minnesota
    Near v. Minnesota, 283 U.S. 697 , was a United States Supreme Court decision that recognized the freedom of the press by roundly rejecting prior restraints on publication, a principle that was applied to free speech generally in subsequent jurisprudence...

    , .

Guarantee of freedom of assembly
Freedom of assembly
Freedom of assembly, sometimes used interchangeably with the freedom of association, is the individual right to come together and collectively express, promote, pursue and defend common interests...

  • This provision has been incorporated against the states. See DeJonge v. Oregon
    DeJonge v. Oregon
    De Jonge v. Oregon, 299 U.S. 353 , was a case in which the Supreme Court of the United States held that the Fourteenth Amendment's due process clause applies to freedom of assembly. The Court found that Dirk De Jonge had the right to organize a Communist Party and to speak at its meetings, even...

    , .

Right to petition for redress of grievances
  • Incorporation is suggested in Edwards v. South Carolina
    Edwards v. South Carolina
    Edwards v. South Carolina, 372 U.S. 229 , was a case in which the Supreme Court of the United States held that the First and Fourteenth Amendments to the U.S...

    , and is essentially the basis of Romer v. Evans
    Romer v. Evans
    Romer v. Evans, 517 U.S. 620 , is a landmark United States Supreme Court case dealing with civil rights and state laws. It was the first Supreme Court case to deal with LGBT rights since Bowers v...

    , .

Guarantee of freedom of expressive association
Freedom of association
Freedom of association is the individual right to come together with other individuals and collectively express, promote, pursue and defend common interests....

  • This right, though not in the words of the first amendment, was first mentioned in the case NAACP v. Alabama
    NAACP v. Alabama
    National Association for the Advancement of Colored People v. Alabama, 357 U.S. 449 , was an important civil rights case brought before the United States Supreme Court....

    , and was at that time applied to the states.

Amendment II


Right to keep and bear arms
Second Amendment to the United States Constitution
The Second Amendment to the United States Constitution is the part of the United States Bill of Rights that protects the right of the people to keep and bear arms. It was adopted on December 15, 1791, along with the rest of the Bill of Rights.In 2008 and 2010, the Supreme Court issued two Second...


  • This right has been incorporated against the states. See McDonald v. Chicago
    McDonald v. Chicago
    McDonald v. Chicago, 561 U.S. 3025, 130 S.Ct. 3020 , was a landmark decision of the Supreme Court of the United States that determined whether the Second Amendment applies to the individual states...

     (2010).

Amendment III


Freedom from quartering of soldiers
Third Amendment to the United States Constitution
The Third Amendment to the United States Constitution is a part of the United States Bill of Rights. It was introduced on September 5, 1789, and then three quarters of the states ratified this as well as 9 other amendments on December 15, 1791. It prohibits, in peacetime, the quartering of...

  • This provision has been incorporated against the states within the jurisdiction of the United States Court of Appeals for the Second Circuit
    United States Court of Appeals for the Second Circuit
    The United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals...

    , and has not been held to be incorporated against the states elsewhere.


In 1982, the Second Circuit
United States Court of Appeals for the Second Circuit
The United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals...

 applied the Third Amendment to the states in Engblom v. Carey
Engblom v. Carey
Engblom v. Carey, 677 F.2d 957 , was a court case decided by the United States Court of Appeals for the Second Circuit. It is the only significant court decision based on a direct challenge under the Third Amendment to the United States Constitution.-The case:The case was initiated by a 1979 strike...

. This is a binding authority over Connecticut
Connecticut
Connecticut is a state in the New England region of the northeastern United States. It is bordered by Rhode Island to the east, Massachusetts to the north, and the state of New York to the west and the south .Connecticut is named for the Connecticut River, the major U.S. river that approximately...

, New York
New York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...

, and Vermont
Vermont
Vermont is a state in the New England region of the northeastern United States of America. The state ranks 43rd in land area, , and 45th in total area. Its population according to the 2010 census, 630,337, is the second smallest in the country, larger only than Wyoming. It is the only New England...

, but is only a persuasive authority over the remainder of the United States.

The Tenth Circuit
United States Court of Appeals for the Tenth Circuit
The United States Court of Appeals for the Tenth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* District of Colorado* District of Kansas...

 has suggested that the right is incorporated because the Bill of Rights explicitly codifies the "fee ownership system developed in English law" through the Third, Fourth, and Fifth Amendments, and the Fourteenth Amendment likewise forbids the states from depriving citizens of their property without due process of law. See United States v. Nichols, 841 F.2d 1485, 1510 n.1 (10th Cir. 1988).

Amendment IV


Unreasonable search and seizure
Fourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...

  • This right has been incorporated against the states, along with the remedy of exclusion of unlawfully seized evidence, by the Supreme Court's decision in Mapp v. Ohio
    Mapp v. Ohio
    Mapp v. Ohio, , was a landmark case in criminal procedure, in which the United States Supreme Court decided that evidence obtained in violation of the Fourth Amendment, which protects against "unreasonable searches and seizures," may not be used in criminal prosecutions in state courts, as well as...

    , . In Mapp, the Court overruled Wolf v. Colorado
    Wolf v. Colorado
    Wolf v. Colorado, 338 U.S. 25 was a United States Supreme Court case in which the Court held 6-3 that the Fourth Amendment was applicable to the States through the Due Process Clause of the Fourteenth Amendment, however, the exclusionary rule was not. The Court specified no redressive measures...

    , , in which the Court had ruled that while the Fourth Amendment applied to the states (meaning that they were bound not to engage in unreasonable searches and seizures), the exclusionary rule did not (meaning that they were free to fashion other remedies for criminal defendants whose possessions had been illegally seized by the police in violation of the Fourth Amendment).


Warrant
Warrant (law)
Most often, the term warrant refers to a specific type of authorization; a writ issued by a competent officer, usually a judge or magistrate, which permits an otherwise illegal act that would violate individual rights and affords the person executing the writ protection from damages if the act is...

 requirements
  • The various warrant requirements have been incorporated against the states. See Aguilar v. Texas
    Aguilar v. Texas
    Aguilar v. Texas, 378 U.S. 108 , was a decision by the United States Supreme Court, which held that “[a]lthough an affidavit supporting a search warrant may be based on hearsay information and need not reflect the direct personal observations of the affiant, the magistrate must be informed of some...

    , .
  • 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
    Ker v. California
    Ker v. California, , was a case before the United States Supreme Court, which incorporated the Fourth Amendment's protections against illegal search and seizure. The case was decided on June 10, 1963, by a vote of 5-4.-Prior history:...

    , .

Amendment V


Right to indictment
Indictment
An indictment , in the common-law legal system, is a formal accusation that a person has committed a crime. In jurisdictions that maintain the concept of felonies, the serious criminal offence is a felony; jurisdictions that lack the concept of felonies often use that of an indictable offence—an...

 by a grand jury
Grand jury
A grand jury is a type of jury that determines whether a criminal indictment will issue. Currently, only the United States retains grand juries, although some other common law jurisdictions formerly employed them, and most other jurisdictions employ some other type of preliminary hearing...

  • This right has been held not to be incorporated against the states. See Hurtado v. California
    Hurtado v. California
    Hurtado v. California, 110 U.S. 516 , was a case decided on by the United States Supreme Court. The case helped define rules regarding the use of grand juries in indictments.- Facts of the case :...

    , 110 U.S. 516 (1884). Because many state constitutions provide for indictment by grand jury, at least in the case of serious crimes, it is unlikely that the Supreme Court will revisit the decision not to incorporate this right against the states.

Protection against double jeopardy
Double jeopardy
Double jeopardy is a procedural defense that forbids a defendant from being tried again on the same, or similar charges following a legitimate acquittal or conviction...

  • This right has been incorporated against the states. See Benton v. Maryland
    Benton v. Maryland
    Benton v. Maryland, , is a Supreme Court of the United States decision concerning double jeopardy. Benton ruled that the Double Jeopardy Clause of the Fifth Amendment does apply to the states. In doing so, Benton expressly overruled Palko v. Connecticut, .-Facts of the case:John Dalmer Benton was...

    , .

Constitutional privilege against self-incrimination
Self-incrimination
Self-incrimination is the act of accusing oneself of a crime for which a person can then be prosecuted. Self-incrimination can occur either directly or indirectly: directly, by means of interrogation where information of a self-incriminatory nature is disclosed; indirectly, when information of a...

  • This right has been incorporated against the states. See Malloy v. Hogan
    Malloy v. Hogan
    Malloy v. Hogan, 378 U.S. 1 , was a case in which the Supreme Court of the United States deemed a defendant's Fifth Amendment right against self-incrimination was applicable within state courts as well as federal courts...

    , .
  • 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
    Miranda v. Arizona
    Miranda v. Arizona, , was a landmark 5–4 decision of the United States Supreme Court. The Court held that both inculpatory and exculpatory statements made in response to interrogation by a defendant in police custody will be admissible at trial only if the prosecution can show that the defendant...

     warnings. Nevertheless, the Court has held that these warnings are a necessary prophylactic device, and thus required by the Fifth Amendment by police who interrogate any criminal suspect in custody, regardless of whether he or she is ultimately prosecuted in state or federal court.

Protection against taking of private property without just compensation
  • This right has been incorporated against the states. See Chicago, Burlington & Quincy Railroad Co. v. City of Chicago
    Chicago, B. & Q. R. Co. v. Chicago
    Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 , incorporated the takings clause of the 5th amendment into the due process clause of the 14th amendment by requiring states to provide just compensation for seizing private property. This was the first supreme court case...

    , 166 U.S. 226 (1897).

Amendment VI


Right to a speedy trial
Speedy trial
Speedy trial refers to one of the rights guaranteed by the United States Constitution to defendants in criminal proceedings. The right to a speedy trial, guaranteed by the Sixth Amendment, is intended to ensure that defendants are not subjected to unreasonably lengthy incarceration prior to a fair...

  • This right has been incorporated against the states. See Klopfer v. North Carolina, .

Right to a public trial
  • This right has been incorporated against the states. See In re Oliver, .

Right to trial by impartial jury
Jury trial
A jury trial is a legal proceeding in which a jury either makes a decision or makes findings of fact which are then applied by a judge...

  • This right has been incorporated against the states. See Duncan v. Louisiana
    Duncan v. Louisiana
    Duncan v. Louisiana, 391 U.S. 145 , was a significant United States Supreme Court decision which incorporated the Sixth Amendment right to a jury trial and applied it to the states.-Background of the case:...

    , . However, the size of the jury, as well as the requirement that it unanimously reach its verdict, vary between federal and state courts. Even so, the Supreme Court has ruled that a jury in a criminal case may have as few as six members. If there are twelve, only nine jurors need agree on a verdict. Furthermore, there is no right to a jury trial in juvenile delinquency proceedings held in state court. See McKeiver v. Pennsylvania
    McKeiver v. Pennsylvania
    McKeiver v. Pennsylvania, 403 U.S. 528 , was a decision of the United States Supreme Court. The Court held that juveniles in juvenile criminal proceedings were not entitled to a jury trial by the Sixth or Fourteenth Amendments...

    , .


Right to notice of accusations
  • This right has been incorporated against the states. See In re Oliver, .

Right to confront adverse witnesses
Confrontation Clause
The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him." Generally, the right is to have a face-to-face confrontation with witnesses who are...

  • This right has been incorporated against the states. See Pointer v. Texas, .

Right to compulsory process (subpoenas) to obtain witness testimony
  • This right has been incorporated against the states. See Washington v. Texas, .

Right to assistance of counsel
  • This right has been incorporated against the states. See Gideon v. Wainwright
    Gideon v. Wainwright
    Gideon v. Wainwright, , is a landmark case in United States Supreme Court history. In the case, the Supreme Court unanimously ruled that state courts are required under the Sixth Amendment of the Constitution to provide counsel in criminal cases for defendants who are unable to afford their own...

    , . In subsequent decisions, the Court extended the right to counsel to any case in which a jail sentence is imposed.

Amendment VII


Right to jury trial in civil cases
Seventh Amendment to the United States Constitution
The Seventh Amendment to the United States Constitution, which was ratified as part of the Bill of Rights, codifies the right to a jury trial in certain civil cases. However, in some civil cases, the Supreme Court has not incorporated the right to a jury trial to the states in the fashion which...

  • This right has been held not to be incorporated against the states. See Minneapolis & St. Louis R. Co. v. Bombolis, .

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

Amendment VIII


Protections against "excessive" bail and "excessive" fines
Eighth Amendment to the United States Constitution
The Eighth Amendment to the United States Constitution is the part of the United States Bill of Rights which prohibits the federal government from imposing excessive bail, excessive fines or cruel and unusual punishments. The U.S. Supreme Court has ruled that this amendment's Cruel and Unusual...


  • These provisions have not been held to be incorporated against the states. In Murphy v. Hunt, , the Court held that a pretrial detainee's suit under 42 U.S.C. § 1983
    Civil Rights Act of 1871
    The Civil Rights Act of 1871, , enacted April 20, 1871, is a federal law in force in the United States. The Act was originally enacted a few years after the American Civil War, along with the 1870 Force Act. One of the chief reasons for its passage was to protect southern blacks from the Ku Klux...

     that he was being unconstitutionally denied bail, in violation of the Eighth Amendment, was rendered moot when he was convicted in a Nebraska court. The conclusion that the § 1983 case had been moot from the moment of the defendant's conviction allowed the Court to avoid deciding whether the Eighth Amendment protection against "excessive" bail applied to prosecutions in state court. In any event, all state constitutions provide for a similar right, and so the most frequent mechanism for challenging the amount of bail, or the complete denial of bail, remains state law.


Protection against "cruel and unusual punishments"
  • This provision has been incorporated against the states. See Robinson v. California
    Robinson v. California
    Robinson v. California, 370 U.S. 660 , was a case in which the Supreme Court of the United States held that the use of civil imprisonment as punishment solely for the misdemeanor crime of addiction to a controlled substance was a violation of the Eighth Amendment's protection against cruel and...

    , . 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
    Baze v. Rees
    Baze v. Rees, 553 U.S. 35 , was a United States Supreme Court case. The court agreed to hear the appeal of two men, Ralph Baze and Thomas Bowling, who were sentenced to death in Kentucky. The men argue that executing them by lethal injection would violate the 8th Amendment prohibition of cruel and...

    , 128 S. Ct. 1520, 1529 (2008).

Reverse incorporation


A similar legal doctrine to incorporation is that of reverse incorporation. Whereas incorporation applies the Bill of Rights to the states though the Due Process Clause of the Fourteenth Amendment, in reverse incorporation, the Equal Protection Clause
Equal Protection Clause
The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws"...

 of the Fourteenth Amendment has been held to apply to the federal government through the Due Process Clause located in the Fifth Amendment.
For example, in Bolling v. Sharpe
Bolling v. Sharpe
Bolling v. Sharpe, 347 U.S. 497 , is a landmark United States Supreme Court case which deals with civil rights, specifically, segregation in the District of Columbia's public schools. Originally argued on December 10–11, 1952, a year before Brown v. Board of Education, 347 U.S...

, , which was a companion case to Brown v. Board of Education
Brown v. Board of Education
Brown v. Board of Education of Topeka, 347 U.S. 483 , was a landmark decision of the United States Supreme Court that declared state laws establishing separate public schools for black and white students unconstitutional. The decision overturned the Plessy v. Ferguson decision of 1896 which...

, the schools of the District of Columbia were desegregated even though Washington is federal. Likewise, in Adarand Constructors, Inc. v. Peña
Adarand Constructors, Inc. v. Peña
Adarand Constructors, Inc. v. Peña, , is a United States Supreme Court case which held that racial classifications, imposed by the federal government, must be analyzed under a standard of "strict scrutiny," the most stringent level of review which requires that racial classifications be narrowly...

, an affirmative action program by the federal government was subjected to strict scrutiny based on equal protection.

Further reading

  • J. Lieberman (1999). A Practical Companion to the Constitution. Berkeley: University of California Press.
  • Regina McClendon, Public Law Research Institute (1994) (stating that "[t]he almost total incorporation of the Bill of Rights lends support to the theory that incorporation of the Second Amendment is inevitable").
  • 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).