Gavin Howe
In United States constitutional law, incorporation is a doctrine that applies portions of the Bill of Rights to the states. The Bill of Rights, comprising the first ten amendments to the United States Constitution, initially only applied to the federal government and federal court cases. However, the Fourteenth Amendment, ratified in 1868 after the Civil War, included the Due Process Clause, which prohibited states from depriving their citizens of certain privileges and protections outlined in the Bill of Rights. This led to a process known as 'selective incorporation,' where the Supreme Court applied key Bill of Rights protections, such as free speech and religious liberty, to the states on a case-by-case basis. While some argue for a more comprehensive incorporation of the Bill of Rights, the Supreme Court has selectively incorporated rights deemed essential to due process, resulting in a gradual expansion of constitutional rights at the state level.
| Characteristics | Values |
|---|---|
| Definition | Incorporation is a doctrine in US constitutional law that applies portions of the Bill of Rights to the states. |
| Basis | Fourteenth Amendment's Due Process Clause and Privileges or Immunities Clause. |
| Scope | Applies both substantively and procedurally. |
| History | The Bill of Rights initially only applied to the federal government. The Supreme Court gradually incorporated it against the states post-Civil War, especially in the 1920s and 1960s. |
| Case Law | Everson v. Board of Education, Cantwell v. Connecticut, Hamilton v. Regents of the University of California, Gitlow v. New York, Near v. Minnesota, DeJonge v. Oregon, Roberts v. United States Jaycees, Schilb v. Kuebel, Timbs v. Indiana, etc. |
| Exceptions | The Ninth and Tenth Amendments have not been incorporated and likely won't be. |
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What You'll Learn
The Bill of Rights and its applicability to states
The Bill of Rights, comprising the first ten amendments to the United States Constitution, was ratified in 1791. It outlines the rights of the people of the United States in relation to their government, including personal freedoms such as freedom of speech, the right to publish, freedom of religion, the right to possess firearms, and the right to assemble.
Originally, the Bill of Rights applied only to the federal government. The Fourteenth Amendment (1868), which includes the Due Process Clause and the Privileges or Immunities Clause, was ratified after the Civil War to extend the Bill of Rights to state governments. The Due Process Clause states that no person shall "be deprived of life, liberty, or property, without due process of law". The Privileges or Immunities Clause, on the other hand, states that no state shall "make or enforce any law which shall abridge the privileges or immunities of citizens of the United States".
The Supreme Court has played a significant role in interpreting the Fourteenth Amendment to incorporate the Bill of Rights against state governments. This process, known as "selective incorporation", involves the Court incorporating specific rights from the Bill of Rights into the Fourteenth Amendment on a case-by-case basis. For example, in Cantwell v. Connecticut (1940), the Court incorporated the First Amendment's Free Exercise Clause, protecting religious freedom. In Everson v. Board of Education (1947), the Court incorporated the Establishment Clause, prohibiting the establishment of an official religion.
However, it is important to note that not all parts of the Bill of Rights have been incorporated against the states. For instance, the Ninth and Tenth Amendments have not been incorporated and are unlikely to be in the future. The Tenth Amendment directly interacts with state law, and the Ninth Amendment is rarely relied upon by the Supreme Court in its decisions.
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The Fourteenth Amendment and its role in incorporation
In United States constitutional law, incorporation is the doctrine by which portions of the Bill of Rights are made applicable to the states. The Fourteenth Amendment, ratified in 1868, played a crucial role in this process by limiting the powers of state governments and ensuring the protection of individual rights.
Prior to the Fourteenth Amendment, the Bill of Rights was interpreted as applying only to the federal government. This interpretation was affirmed by the Supreme Court in cases such as Barron v. Baltimore (1833) and United States v. Cruikshank (1876). However, the Fourteenth Amendment's Due Process Clause provided a mechanism to extend certain rights to the states.
The Due Process Clause of the Fourteenth Amendment states that no person shall be deprived of "life, liberty, or property, without due process of law". This differed from the Due Process Clause of the Fifth Amendment, which did not explicitly apply to the states. Through a series of Supreme Court decisions in the 1920s and beyond, the Fourteenth Amendment was used to "'incorporate' portions of the Bill of Rights, making them enforceable against state governments for the first time.
The process of incorporation, also known as "selective incorporation", involved the Supreme Court incorporating certain parts of amendments rather than entire amendments at once. This approach allowed the Court to apply key Bill of Rights protections, such as free speech and religious liberty, to the states on a case-by-case basis. For example, in Cantwell v. Connecticut (1940) and Everson v. Board of Education (1947), the Court incorporated the First Amendment's Free Exercise Clause and Establishment Clause, respectively.
While the Fourteenth Amendment played a pivotal role in incorporation, there has been debate over the extent to which it should incorporate substantive rights. Some Supreme Court justices have supported "total incorporation", arguing that every provision of the Bill of Rights should apply to the states. Others have favoured a more limited approach, interpreting the Due Process Clause as incorporating only those rights deemed essential to due process. Additionally, some scholars have suggested that the Privileges or Immunities Clause of the Fourteenth Amendment may be a more appropriate basis for incorporation than the Due Process Clause. However, this theory has been controversial due to the interpretation of the Slaughter-House Cases (1873), which limited the reach of the Fourteenth Amendment in applying rights against state abuses.
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The Due Process Clause and its implications for states' rights
In United States constitutional law, incorporation is the doctrine by which portions of the Bill of Rights are made applicable to the states. The Due Process Clause of the Fourteenth Amendment, which prohibits the states from depriving "any person of life, liberty, or property, without due process of law", has been central to this process.
The Due Process Clause of the Fourteenth Amendment differs from the Fifth Amendment's due process clause, which applies only to the federal government. The Fourteenth Amendment's clause explicitly applies to the states, stating that:
> "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."
The Supreme Court has interpreted the Fourteenth Amendment to "'incorporate' most portions of the Bill of Rights, making these enforceable against state governments for the first time. This process, known as "'selective incorporation'", has been applied on a case-by-case basis, with the Court incorporating constitutional rights such as free speech, freedom of religion, freedom of the press, and freedom of assembly.
The Due Process Clause has also been used to protect certain substantive rights that are not explicitly listed in the Constitution. These unenumerated rights are considered so important that they cannot be infringed upon without a compelling reason, regardless of the process followed. However, the exact extent of the rights protected by substantive due process is a subject of debate.
In conclusion, the Due Process Clause of the Fourteenth Amendment has had far-reaching implications for states' rights, limiting their power and ensuring that individuals' rights are protected from state interference. This process of incorporation has transformed the Bill of Rights into a charter of national freedom, safeguarding Americans from abuses by both the national government and their state governments.
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The Supreme Court's interpretation of incorporation
In United States constitutional law, incorporation is the doctrine by which portions of the Bill of Rights are made applicable to the states. The Bill of Rights, which comprises the first ten amendments to the United States Constitution, was initially held to apply only to the federal government and federal court cases. This interpretation was affirmed by the Supreme Court in Barron v. Baltimore (1833), which held that the Bill of Rights did not place limitations on the authority of state governments.
However, the Supreme Court's interpretation of incorporation began to evolve in the post-Civil War era, particularly with the ratification of the Fourteenth Amendment in 1868. The Fourteenth Amendment includes the Due Process Clause, which prohibits states from depriving their citizens of certain privileges and protections outlined in the Bill of Rights. Over time, the Supreme Court has interpreted the Fourteenth Amendment to "'incorporate' various portions of the Bill of Rights, making them enforceable against state governments. This process, known as "'selective incorporation'," involves the Court incorporating specific parts of amendments rather than entire amendments at once.
One notable example of the Supreme Court's interpretation of incorporation is the case of Schilb v. Kuebel (1971), where the Court stated that the Eighth Amendment's prohibition of excessive bail applied to the states through the Fourteenth Amendment. Similarly, in Timbs v. Indiana (2019), the Court held that the protection against excessive fines had been incorporated against the states.
Another key aspect of the Supreme Court's interpretation of incorporation is the controversy surrounding the Privileges or Immunities Clause of the Fourteenth Amendment. Some scholars and justices argue that this clause is a more appropriate basis for incorporating the Bill of Rights than the Due Process Clause. However, the Supreme Court has generally rejected this theory due to the controversy surrounding the Slaughter-House Cases (1873), where the Court ruled that the Privileges or Immunities Clause was not designed to protect individuals from state governments.
The Supreme Court has also interpreted incorporation on a case-by-case basis, applying key Bill of Rights protections to states in specific instances. For example, in Cantwell v. Connecticut (1940), the Court expanded the incorporated rights to include the First Amendment's Free Exercise Clause. Similarly, in Everson v. Board of Education (1947), the Court incorporated the Establishment Clause of the First Amendment. In the early 1960s, the Court began to apply most of the remaining provisions of the Bill of Rights against the states, incorporating those rights deemed "fundamental."
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Selective incorporation and its impact on individual rights
In United States constitutional law, incorporation is the doctrine by which portions of the Bill of Rights are made applicable to the states. The Bill of Rights, when ratified, was held to extend only to the actions of the federal government, and thus did not place limitations on the authority of state and local governments.
Selective incorporation is the case-by-case application of the Bill of Rights to the states through the Fourteenth Amendment. It is used to limit state regulations that may infringe on civil rights and liberties. Citizens sought the Supreme Court's review of state laws and procedures that infringed on rights under the Bill of Rights. The Court used selective incorporation to protect people from state infringements on Constitutional rights, such as freedom of speech, freedom of religion, freedom of the press, freedom of assembly, and freedom of expressive association.
The Supreme Court supported selectively incorporating rights that it deemed essential to due process, rather than incorporating all of the Bill of Rights under the Due Process Clause. Under selective incorporation, the Supreme Court incorporates certain parts of certain amendments, rather than incorporating an entire amendment at once. This is done on a case-by-case basis, applying key Bill of Rights protections against state abuses.
The impact of selective incorporation on individual rights has been significant. It has ensured that state laws cannot violate the fundamental protections guaranteed by the Bill of Rights. For example, in Miranda v. Arizona (1966), the Supreme Court held that law enforcement must advise individuals in custody of their right to remain silent, incorporating the Fifth Amendment's protection against self-incrimination. In Cantwell v. Connecticut (1940), the Court strengthened protections on religious speech, and in Brown v. The Board of Education (1954), it found that school segregation violated the Equal Protection Clause of the Fourteenth Amendment.
Overall, selective incorporation has played a crucial role in extending the protections of the Bill of Rights to the states, ensuring that individual rights are respected and protected by both federal and state governments.
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Frequently asked questions
In United States constitutional law, incorporation is the doctrine by which portions of the Bill of Rights are made applicable to the states.
The Bill of Rights is the first ten amendments to the United States Constitution.
The Due Process Clause is part of the Fourteenth Amendment, which states that no person shall be deprived of life, liberty, or property without due process of law. This clause has been used to incorporate parts of the Bill of Rights and make them applicable to the states.
Examples of incorporated rights include freedom of speech, freedom of religion, freedom of the press, and the right to a speedy trial.
The Ninth and Tenth Amendments have not been incorporated and are unlikely to be. Additionally, certain rights under the First Amendment, such as the right to indictment by a grand jury, have not been incorporated.
