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In
United States constitutional law The constitutional law of the United States is the body of law governing the interpretation and implementation of the United States Constitution. The subject concerns the scope of power of the United States federal government compared to the indi ...
, incorporation is the doctrine by which portions of the
Bill of Rights A bill of rights, sometimes called a declaration of rights or a charter of rights, is a list of the most important rights to the citizens of a country. The purpose is to protect those rights against infringement from public officials and pri ...
have been made applicable to the
state State may refer to: Arts, entertainment, and media Literature * ''State Magazine'', a monthly magazine published by the U.S. Department of State * ''The State'' (newspaper), a daily newspaper in Columbia, South Carolina, United States * ''Our S ...
s. When the Bill of Rights was ratified, the courts held that its protections extended only to the actions of the
federal government A federation (also known as a federal state) is a political entity characterized by a union of partially self-governing provinces, states, or other regions under a central federal government (federalism). In a federation, the self-governin ...
and that the Bill of Rights did not place limitations on the authority of the
state State may refer to: Arts, entertainment, and media Literature * ''State Magazine'', a monthly magazine published by the U.S. Department of State * ''The State'' (newspaper), a daily newspaper in Columbia, South Carolina, United States * ''Our S ...
and
local governments Local government is a generic term for the lowest tiers of public administration within a particular sovereign state. This particular usage of the word government refers specifically to a level of administration that is both geographically-loca ...
. However, the post–
Civil War A civil war or intrastate war is a war between organized groups within the same state (or country). The aim of one side may be to take control of the country or a region, to achieve independence for a region, or to change government policies ...
era, beginning in 1865 with the Thirteenth Amendment, which declared the abolition of
slavery Slavery and enslavement are both the state and the condition of being a slave—someone forbidden to quit one's service for an enslaver, and who is treated by the enslaver as property. Slavery typically involves slaves being made to perf ...
, 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 the state and local governments by incorporation through the Fourteenth Amendment in 1868 and the Fifteenth Amendment in 1870. Prior to the ratification of the Fourteenth Amendment and the development of the incorporation doctrine, the
Supreme Court A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
in 1833 held in ''
Barron v. Baltimore ''Barron v. Baltimore'', 32 U.S. (7 Pet.) 243 (1833), is a landmark United States Supreme Court case in 1833, which helped define the concept of federalism in US constitutional law. The Court ruled that the Bill of Rights did not apply to the stat ...
'' 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 First or 1st is the ordinal form of the number one (#1). First or 1st may also refer to: *World record, specifically the first instance of a particular achievement Arts and media Music * 1$T, American rapper, singer-songwriter, DJ, and rec ...
and
Second Amendment The second (symbol: s) is the unit of time in the International System of Units (SI), historically defined as of a day – this factor derived from the division of the day first into 24 hours, then to 60 minutes and finally to 60 seconds each ...
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

The United States Bill of Rights is the first ten
amendments An amendment is a formal or official change made to a law, contract, constitution, or other legal document. It is based on the verb to amend, which means to change for better. Amendments can add, remove, or update parts of these agreements. The ...
to the
United States Constitution The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven ar ...
. Proposed following the oftentimes bitter 1787–88 battle over ratification of the United States Constitution, and crafted to address the objections raised by
Anti-Federalists Anti-Federalism was a late-18th century political movement that opposed the creation of a stronger U.S. federal government and which later opposed the ratification of the 1787 Constitution. The previous constitution, called the Articles of Con ...
, the Bill of Rights amendments add to the Constitution specific guarantees of personal freedoms and
rights Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people according to some legal system, social convention, or ethical the ...
, 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
people A person (plural, : people) is a being that has certain capacities or attributes such as reason, morality, consciousness or self-consciousness, and being a part of a culturally established form of social relations such as kinship, ownership of pr ...
. The concepts enumerated in these amendments are built upon those found in several earlier documents, including the
Virginia Declaration of Rights The Virginia Declaration of Rights was drafted in 1776 to proclaim the inherent rights of men, including the right to reform or abolish "inadequate" government. It influenced a number of later documents, including the United States Declaratio ...
and the English
Bill of Rights 1689 The Bill of Rights 1689 is an Act of the Parliament of England, which sets out certain basic civil rights and clarifies who would be next to inherit the Crown, and is seen as a crucial landmark in English constitutional law. It received Royal ...
, along with earlier documents such as
Magna Carta (Medieval Latin for "Great Charter of Freedoms"), commonly called (also ''Magna Charta''; "Great Charter"), is a royal charter of rights agreed to by King John of England at Runnymede, near Windsor, on 15 June 1215. First drafted by the ...
(1215). Although
James Madison James Madison Jr. (March 16, 1751June 28, 1836) was an American statesman, diplomat, and Founding Father. He served as the fourth president of the United States from 1809 to 1817. Madison is hailed as the "Father of the Constitution" for hi ...
'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. In the 1833 case of ''
Barron v. Baltimore ''Barron v. Baltimore'', 32 U.S. (7 Pet.) 243 (1833), is a landmark United States Supreme Court case in 1833, which helped define the concept of federalism in US constitutional law. The Court ruled that the Bill of Rights did not apply to the stat ...
'', the
Supreme Court of the United States The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
held that the Bill of Rights did not apply to state governments; such protections were instead provided by the constitutions of each state. After the
Civil War A civil war or intrastate war is a war between organized groups within the same state (or country). The aim of one side may be to take control of the country or a region, to achieve independence for a region, or to change government policies ...
, Congress and the states ratified the Fourteenth Amendment, which included the
Due Process Clause In United States constitutional law, a Due Process Clause is found in both the Fifth and Fourteenth Amendments to the United States Constitution, which prohibits arbitrary deprivation of "life, liberty, or property" by the government except as ...
and the
Privileges or Immunities Clause The Privileges or Immunities Clause is Amendment XIV, Section 1, Clause 2 of the United States Constitution. Along with the rest of the Fourteenth Amendment, this clause became part of the Constitution on July 9, 1868. Text of the clause The cl ...
. While the 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 The Privileges and Immunities Clause ( U.S. Constitution, Article IV, Section 2, Clause 1, also known as the Comity Clause) prevents a state from treating citizens of other states in a discriminatory manner. Additionally, a right of interstate ...
of
Article IV Article Four may refer to the 4th article of any regulatory document, such as: * Article 4 of the European Convention on Human Rights * Article Four (political party), political party in Sicily, Italy * Article Four of the United States Constitu ...
of the Constitution. In the ''
Slaughter-House Cases The ''Slaughter-House Cases'', 83 U.S. (16 Wall.) 36 (1873), was a landmark U.S. Supreme Court decision consolidating several cases that held that the Privileges or Immunities Clause of the Fourteenth Amendment to the U.S. Constitution only pr ...
'' (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.


Incorporation

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 Just compensation is a right enshrined in the Fifth Amendment to the U.S. Constitution (and counterpart state constitutions), which is invoked whenever private property is taken (also in some states damaged) by the government. Usually, the gove ...
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'', 268 U.S. 652 (1925), was a List of landmark court decisions in the United States, landmark decision of the Supreme Court of the United States, United States Supreme Court holding that the Fourteenth Amendment to the United S ...
'' (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 have not yet been addressed, include the Fifth Amendment right to an indictment by a
grand jury A grand jury is a jury—a group of citizens—empowered by law to conduct legal proceedings, investigate potential criminal conduct, and determine whether criminal charges should be brought. A grand jury may subpoena physical evidence or a pe ...
, and the Seventh Amendment right to a
jury trial A jury trial, or trial by jury, is a Trial, legal proceeding in which a jury makes a decision or Question of law, findings of fact. It is distinguished from a bench trial in which a judge or Judicial panel, panel of judges makes all decisions. ...
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'', . Rep.
John Bingham John Armor Bingham (January 21, 1815 – March 19, 1900) was an American politician who served as a Republican Party (United States), Republican representative from Ohio and as the United States ambassador to Japan. In his time as a congress ...
, 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 The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
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 against the States almost all of the protections in the Bill of Rights, as well as other, unenumerated rights."Primary Documents in American History"
Library of Congress
The
Bill of Rights A bill of rights, sometimes called a declaration of rights or a charter of rights, is a list of the most important rights to the citizens of a country. The purpose is to protect those rights against infringement from public officials and pri ...
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. The Supreme Court for example concluded in the '' West Virginia State Board of Education v. Barnette'' (1943) case that the founders intended the
Bill of Rights A bill of rights, sometimes called a declaration of rights or a charter of rights, is a list of the most important rights to the citizens of a country. The purpose is to protect those rights against infringement from public officials and pri ...
to put some rights out of reach from majorities, ensuring that some liberties would endure beyond political majorities. 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." This is why "fundamental rights may not be submitted to a vote; they depend on the outcome of no elections."''
Obergefell v. Hodges ''Obergefell v. Hodges'', ( ), is a landmark LGBT rights case in which the Supreme Court of the United States ruled that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protect ...
'', No. 14-556
slip op.
at 24 (U.S. June 26, 2015).
The 14th Amendment has vastly expanded
civil rights Civil and political rights are a class of rights that protect individuals' freedom from infringement by governments, social organizations, and private individuals. They ensure one's entitlement to participate in the civil and political life of ...
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
Justices A judge is a person who presides over court proceedings, either alone or as a part of a panel of judges. A judge hears all the witnesses and any other evidence presented by the barristers or solicitors of the case, assesses the credibility an ...
Hugo Black and
William O. Douglas William Orville Douglas (October 16, 1898January 19, 1980) was an American jurist who served as an associate justice of the Supreme Court of the United States, who was known for his strong progressive and civil libertarian views, and is often ci ...
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.Amar, Akhil Reed:
The Bill of Rights: Creation and Reconstruction
'', Page 234. Yale University Press, 1998
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 Fundamental rights are a group of rights that have been recognized by a high degree of protection from encroachment. These rights are specifically identified in a constitution, or have been found under due process of law. The United Nations' Sustai ...
" that might be based on the Ninth Amendment. The Tenth Amendment was excluded from total incorporation as well, due to it already being patently concerned with the power of the states. 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''. This view was again expressed by Black in his concurrence in ''
Duncan v. Louisiana ''Duncan v. Louisiana'', 391 U.S. 145 (1968), 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 In October 1966, Gary Duncan, a 19-year- ...
'' 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."


Due process interpretation

Justice
Felix Frankfurter Felix Frankfurter (November 15, 1882 – February 22, 1965) was an Austrian-American jurist who served as an Associate Justice of the Supreme Court of the United States from 1939 until 1962, during which period he was a noted advocate of judic ...
, 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 Due process of law is application by state of all legal rules and principles pertaining to the case so all legal rights that are owed to the person are respected. Due process balances the power of law of the land and protects the individual pers ...
, 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 Cardozo is a Portuguese and Spanish surname. It is an archaic spelling of the surname "Cardoso (surname), Cardoso". Notable people with this surname *Aaron Cardozo (1762–1834), Gibraltarian consul for Tunis and Algiers *Albert Cardozo (1828–18 ...
stated in ''
Palko v. Connecticut ''Palko v. Connecticut'', 302 U.S. 319 (1937), was a United States Supreme Court case concerning the incorporation of the Fifth Amendment protection against double jeopardy. Background In 1935, Frank Palko, a Connecticut resident, broke into a ...
'' (1937) that the right against
double jeopardy In jurisprudence, double jeopardy is a procedural defence (primarily in common law jurisdictions) that prevents an accused person from being tried again on the same (or similar) charges following an acquittal or conviction and in rare case ...
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'', 395 U.S. 784 (1969), is a Supreme Court of the United States decision concerning double jeopardy. ''Benton'' ruled that the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, Fifth Amendment In ...
'' (1969). Frankfurter's incrementalist approach did carry the day, but the end result is very nearly what Justice Black advocated, with the exceptions noted below.


Incorporation under privileges or immunities

Some have suggested that the Privileges or Immunities Clause would be a more appropriate textual basis than the due process clause for incorporation of the Bill of Rights. It is often said that the ''
Slaughter-House Cases The ''Slaughter-House Cases'', 83 U.S. (16 Wall.) 36 (1873), was a landmark U.S. Supreme Court decision consolidating several cases that held that the Privileges or Immunities Clause of the Fourteenth Amendment to the U.S. Constitution only pr ...
'' "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'', however, Justice Hugo Black 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 In general usage, a dictum ( in Latin; plural dicta) is an authoritative or dogmatic statement. In some contexts, such as legal writing and church cantata librettos, ''dictum'' can have a specific meaning. Legal writing In United States legal term ...
, 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'', the Supreme Court declared the
Second Amendment The second (symbol: s) is the unit of time in the International System of Units (SI), historically defined as of a day – this factor derived from the division of the day first into 24 hours, then to 60 minutes and finally to 60 seconds each ...
is incorporated through the Due Process Clause. However, Justice
Thomas Thomas may refer to: People * List of people with given name Thomas * Thomas (name) * Thomas (surname) * Saint Thomas (disambiguation) * Thomas Aquinas (1225–1274) Italian Dominican friar, philosopher, and Doctor of the Church * Thomas the A ...
, 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, 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'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 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.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' view, incorporation through Privileges or Immunities would allow the Court to exclude rights from incorporation which had erroneously been deemed fundamental in previous decisions. 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.


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 A warren is a network of wild rodent or lagomorph, typically rabbit burrows. Domestic warrens are artificial, enclosed establishment of animal husbandry dedicated to the raising of rabbits for meat and fur. The term evolved from the medieval A ...
Court of the 1960s, famous for its concern for the rights of those accused of crimes, brought state standards in line with federal requirements. The following list enumerates, by amendment and individual clause, the Supreme Court cases that have incorporated the rights contained in the Bill of Rights. (The Ninth Amendment is not listed; its wording indicates that it "is not a source of rights as such; it is simply a rule about how to read the Constitution." The Tenth Amendment is also not listed; by its wording, it is a reservation of powers to the states and to the people.)


Amendment I

Guarantee against
establishment of religion A state religion (also called religious state or official religion) is a religion or creed officially endorsed by a sovereign state. A state with an official religion (also known as confessional state), while not secular, is not necessarily a th ...
* This provision has been incorporated against the states. ''See Everson v. Board of Education'', . Guarantee of
free exercise of religion Freedom of religion or religious liberty is a principle that supports the freedom of an individual or community, in public or private, to manifest religion or belief in teaching, practice, worship, and observance. It also includes the freedom ...
* This provision has been incorporated against the states. ''See
Cantwell v. Connecticut ''Cantwell v. Connecticut'', 310 U.S. 296 (1940), is a landmark court decision by the United States Supreme Court holding that the First Amendment's ''federal'' protection of religious free exercise incorporates via the Due Process Clause of t ...
'', . Guarantee of
freedom of speech Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The right to freedom of expression has been recogni ...
* This provision has been incorporated against the states. ''See
Gitlow v. New York ''Gitlow v. New York'', 268 U.S. 652 (1925), was a List of landmark court decisions in the United States, landmark decision of the Supreme Court of the United States, United States Supreme Court holding that the Fourteenth Amendment to the United S ...
'', and ''
Stromberg v. California ''Stromberg v. California'', 283 U.S. 359 (1931), was a landmark decision of the Supreme Court of the United States in which the Court held, 7–2, that a California statute banning red flags was unconstitutional because it violated the First an ...
'', . Guarantee of
freedom of the press Freedom of the press or freedom of the media is the fundamental principle that communication and expression through various media, including printed and electronic News media, media, especially publication, published materials, should be conside ...
* This provision has been incorporated against the states. ''See
Gitlow v. New York ''Gitlow v. New York'', 268 U.S. 652 (1925), was a List of landmark court decisions in the United States, landmark decision of the Supreme Court of the United States, United States Supreme Court holding that the Fourteenth Amendment to the United S ...
'',
Near v. Minnesota ''Near v. Minnesota'', 283 U.S. 697 (1931), was a List of landmark court decisions in the United States, landmark decision of the US Supreme Court under which prior restraint on publication was found to violate Freedom of the press in the United S ...
'', . Guarantee of
freedom of assembly Freedom of peaceful assembly, sometimes used interchangeably with the freedom of association, is the individual right or ability of people to come together and collectively express, promote, pursue, and defend their collective or shared ide ...
* This provision has been incorporated against the states. ''See De Jonge v. Oregon'', . Guarantee of the
right to petition The right to petition government for redress of grievances is the right to make a complaint to, or seek the assistance of, one's government, without fear of punishment or reprisals. In Europe, Article 44 of the Charter of Fundamental Rights of ...
for redress of grievances * This provision has been incorporated against the states. ''See
Edwards v. South Carolina ''Edwards v. South Carolina'', 372 U.S. 229 (1963), was a landmark decision of the US Supreme Court ruling that the First and Fourteenth Amendments to the U.S. Constitution forbade state government officials to force a crowd to disperse when th ...
'', . Guarantee of freedom of expressive association * This right, though not in the words of the first amendment, was first mentioned in the case '' NAACP v. Alabama'', and was at that time applied to the states. See also ''
Roberts v. United States Jaycees ''Roberts v. United States Jaycees'', 468 U.S. 609 (1984), was a decision of the Supreme Court of the United States overturning the United States Court of Appeals for the Eighth Circuit's application of a Minnesota antidiscrimination law. The ca ...
'', , 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

Right to keep and bear arms * This right has been incorporated against the states. Described as a fundamental and individual right that will necessarily be subject to strict scrutiny by the courts, ''see
McDonald v. City of Chicago ''McDonald v. City of Chicago'', 561 U.S. 742 (2010), was a landmark decision of the Supreme Court of the United States that found that the right of an individual to "keep and bear arms", as protected under the Second Amendment, is incorporated ...
'' (2010). Self Defense is described as "the central component" of the Second Amendment in McDonald, supra., and upheld ''
District of Columbia v. Heller ''District of Columbia v. Heller'', 554 U.S. 570 (2008), is a landmark decision of the U.S. Supreme Court ruling that the Second Amendment to the U.S. Constitution protects an individual's right to keep and bear arms, unconnected with service i ...
'' 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. The 14th Amendment makes the 2nd Amendment right to keep and bear arms fully applicable to the States, see, McDonald vs. City of Chicago (2010). "The right to keep and bear arms must be regarded as a substantive guarantee, not a prohibition that could be ignored as long as the States legislated in an evenhanded manner," McDonald, supra..


Amendment III

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 The United States Court of Appeals for the Second Circuit (in case citations, 2d Cir.) is one of the thirteen United States Courts of Appeals. Its territory comprises the states of Connecticut, New York and Vermont. The court has appellate juri ...
, but has ''not'' been incorporated against the states elsewhere. In 1982, the
Second Circuit The United States Court of Appeals for the Second Circuit (in case citations, 2d Cir.) is one of the thirteen United States Courts of Appeals. Its territory comprises the states of Connecticut, New York and Vermont. The court has appellate jur ...
applied the Third Amendment to the states in '' Engblom v. Carey''. This is a binding authority over the federal courts in
Connecticut Connecticut () is the southernmost state in the New England region of the Northeastern United States. It is bordered by Rhode Island to the east, Massachusetts to the north, New York to the west, and Long Island Sound to the south. Its cap ...
, New York, and
Vermont Vermont () is a state in the northeast New England region of the United States. Vermont is bordered by the states of Massachusetts to the south, New Hampshire to the east, and New York to the west, and the Canadian province of Quebec to ...
, but is only a persuasive authority over the other courts in the United States. The
Tenth Circuit The United States Court of Appeals for the Tenth Circuit (in case citations, 10th Cir.) is a federal court with appellate jurisdiction over the district courts in the following districts: * District of Colorado * District of Kansas * Dis ...
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 The Fourth Amendment (Amendment IV) to the United States Constitution is part of the Bill of Rights. It prohibits unreasonable searches and seizures. In addition, it sets requirements for issuing warrants: warrants must be issued by a judge or ...
* This right has been incorporated against the states by the Supreme Court's decision in '' Mapp v. Ohio'', , although there is ''
dicta In general usage, a dictum ( in Latin; plural dicta) is an authoritative or dogmatic statement. In some contexts, such as legal writing and church cantata librettos, ''dictum'' can have a specific meaning. Legal writing In United States legal term ...
'' in ''
Wolf v. Colorado ''Wolf v. Colorado'', 338 U.S. 25 (1949), was a United States Supreme Court case in which the Court held 6—3 that, while the Fourth Amendment was applicable to the states, the exclusionary rule was not a necessary ingredient of the Fourth Amend ...
'', , saying the "core" of the Fourth Amendment applied to the States. * The remedy of exclusion of unlawfully seized evidence, the
exclusionary rule In the United States, the exclusionary rule is a legal rule, based on constitutional law, that prevents evidence collected or analyzed in violation of the defendant's constitutional rights from being used in a court of law. This may be consider ...
, 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 requirements * The various warrant requirements have been incorporated against the states. ''See Aguilar v. Texas'', . * 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'', 374 U.S. 23 (1963), 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. ...
'', .


Amendment V

Right to
indictment An indictment ( ) is a formal accusation that a legal person, person has committed a crime. In jurisdictions that use the concept of felony, felonies, the most serious criminal offence is a felony; jurisdictions that do not use the felonies concep ...
by a
grand jury A grand jury is a jury—a group of citizens—empowered by law to conduct legal proceedings, investigate potential criminal conduct, and determine whether criminal charges should be brought. A grand jury may subpoena physical evidence or a pe ...
* This right has been held ''not to be'' incorporated against the states. ''See
Hurtado v. California ''Hurtado v. California'', 110 U.S. 516 (1884),. was a landmark case decided by the United States Supreme Court that allowed state governments, as distinguished from the federal government, to avoid using grand juries in criminal prosecutions. ...
'', 110 U.S. 516 (1884). Protection against
double jeopardy In jurisprudence, double jeopardy is a procedural defence (primarily in common law jurisdictions) that prevents an accused person from being tried again on the same (or similar) charges following an acquittal or conviction and in rare case ...
* This right has been incorporated against the states. ''See
Benton v. Maryland ''Benton v. Maryland'', 395 U.S. 784 (1969), is a Supreme Court of the United States decision concerning double jeopardy. ''Benton'' ruled that the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, Fifth Amendment In ...
'', . Constitutional privilege against
self-incrimination In criminal law, self-incrimination is the act of exposing oneself generally, by making a statement, "to an accusation or charge of crime; to involve oneself or another ersonin a criminal prosecution or the danger thereof". (Self-incrimination ...
* This right has been incorporated against the states. *# Self Incrimination in Court ''See Griffin v. California'', 380 U.S. 609 (1965), '' Malloy v. Hogan'', . *# Miranda ''See
Miranda v. Arizona ''Miranda v. Arizona'', 384 U.S. 436 (1966), was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Fifth Amendment to the U.S. Constitution restricts prosecutors from using a person's statements made in response to ...
'', . * 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'' 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 the subject 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'', 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'', . Right to a
public trial Public trial or open trial is a trial that is open to the public, as opposed to a secret trial. It should not be confused with a show trial. United States The Sixth Amendment to the United States Constitution establishes the right of the accus ...
* This right has been incorporated against the states. ''See In re Oliver'', . Right to trial by impartial jury * This right has been incorporated against the states. ''See
Duncan v. Louisiana ''Duncan v. Louisiana'', 391 U.S. 145 (1968), 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 In October 1966, Gary Duncan, a 19-year- ...
'', , which guarantees the right to a jury trial in non-petty cases. ''See also Parker v. Gladden'', , 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 ....'" 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'', . Furthermore, there is no right to a jury trial in juvenile delinquency proceedings held in state court. ''See
McKeiver v. Pennsylvania ''McKeiver v. Pennsylvania'', 403 U.S. 528 (1971), is 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.. The Cou ...
'', . 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. Right to a jury selected from residents of the state and district where the crime occurred *This right has ''not been'' incorporated against the states. ''See Caudill v. Scott'', 857 F.2d 344 (6th Cir. 1988); ''Cook v. Morrill'', 783 F.2d 593 (5th Cir. 1986); ''Zicarelli v. Dietz'', 633 F.2d 312 (3d Cir. 1980). Right to notice of accusations * This right has been incorporated against the states. ''See In re Oliver'', . ''See also Rabe v. Washington'', . Right to confront adverse witnesses * This right has been incorporated against the states. ''See
Pointer v. Texas ''Pointer v. Texas'', 380 U.S. 400 (1965), was a decision by the United States Supreme Court involving the application of the right of to confront accusers in state court proceedings. The Sixth Amendment in the Bill of Rights states that, in cr ...
'', . 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 Powell v. Alabama'' , for capital cases, ''see
Gideon v. Wainwright ''Gideon v. Wainwright'', 372 U.S. 335 (1963), was a landmark U.S. Supreme Court decision in which the Court ruled that the Sixth Amendment of the U.S. Constitution requires U.S. states to provide attorneys to criminal defendants who are unable ...
'', for all felony cases, and ''see
Argersinger v. Hamlin ''Argersinger v. Hamlin'', 407 U.S. 25 (1972), is a United States Supreme Court decision holding that the accused cannot be subjected to actual imprisonment unless provided with counsel. ''Gideon v. Wainwright'' made the right to counsel provided ...
'', for imprisonable misdemeanors. 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''
Shinn v. Martinez Ramirez
', 596 U.S. ___ (2022).


Amendment VII

Right to jury trial in civil cases * This right has ''not been'' incorporated against the states. ''See Minneapolis & St. Louis R. Co. v. Bombolis'', and ''Pearson v. Yewdall'', Re-Examination Clause * This right has ''not been'' incorporated against the states.'' See Minneapolis & St. Louis R. Co. v. Bombolis'',


Amendment VIII

Protection against
excessive bail The Excessive Bail Clause of the Eighth Amendment to the United States Constitution prohibits excessive bail set in pre-trial detention. If a judge posts excessive bail, the defendant's lawyer may make a motion in court to lower the bail or appe ...
*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'', , 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
excessive fines The Eighth Amendment (Amendment VIII) to the United States Constitution protects against imposing excessive bail, excessive fines, or cruel and unusual punishments. This amendment was adopted on December 15, 1791, along with the rest of the ...
*This right has been incorporated against the states. See '' Timbs v. Indiana'' (2019), in which Justice
Ruth Bader Ginsburg Joan Ruth Bader Ginsburg ( ; ; March 15, 1933September 18, 2020) was an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1993 until her death in 2020. She was nominated by President ...
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." Protection against
cruel and unusual punishment Cruel and unusual punishment is a phrase in common law describing punishment that is considered unacceptable due to the suffering, pain, or humiliation it inflicts on the person subjected to the sanction. The precise definition varies by jurisd ...
s * This right has been incorporated against the states. ''See
Robinson v. California ''Robinson v. California'', 370 U.S. 660 (1962), is the first landmark decision of the United States Supreme Court in which the Eighth Amendment of the Constitution was interpreted to prohibit criminalization of particular acts or conduct, as cont ...
'', . 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

A similar legal doctrine to incorporation is that of reverse incorporation. Whereas incorporation applies the Bill of Rights to the states through the Due Process Clause of the Fourteenth Amendment, in reverse incorporation, the
Equal Protection Clause The Equal Protection Clause is part of the first section of the Fourteenth Amendment to the United States Constitution. The clause, which took effect in 1868, provides "''nor shall any State ... deny to any person within its jurisdiction the equal ...
of the Fourteenth Amendment has been held to apply to the federal government through the Due Process Clause located in the Fifth Amendment.Columbia Law Review, May 2004
/ref> For example, in ''
Bolling v. Sharpe ''Bolling v. Sharpe'', 347 U.S. 497 (1954), is a List of landmark court decisions in the United States, landmark Supreme Court of the United States, United States Supreme Court Legal case, case in which the Court held that the Constitution proh ...
'', , which was a companion case to ''
Brown v. Board of Education ''Brown v. Board of Education of Topeka'', 347 U.S. 483 (1954), was a landmark decision by the U.S. Supreme Court, which ruled that U.S. state laws establishing racial segregation in public schools are unconstitutional, even if the segrega ...
'', the schools of the District of Columbia were desegregated even though Washington is a federal enclave. Likewise, in ''
Adarand Constructors, Inc. v. Peña ''Adarand Constructors, Inc. v. Peña'', 515 U.S. 200 (1995), was a List of landmark court decisions in the United States, landmark Supreme Court of the United States, United States Supreme Court case which held that racial classifications, impos ...
'' , an affirmative action program by the federal government was subjected to strict scrutiny based on equal protection.


References


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 " e 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). {{US Constitution United States constitutional law Legal history of the United States Fourteenth Amendment to the United States Constitution