Incorporation: Applying the Bill of Rights to the States

Applying the Bill of
Rights to the States
Bill of Rights Institute
Prairie State College---Matteson Area Center
Matteson, IL
March 19, 2009
Artemus Ward
Department of Political Science
Northern Illinois University
What is the Bill of Rights?
• The first 10 Amendments
to the U.S. Constitution.
• Passed by the first
Congress in 1791.
• The Bill of Rights was
added to the Constitution
because of the fear that
the federal government
might become too
powerful and encroach
on individual rights.
What is Incorporation?
• Consider the 1st Amendment: "Congress shall
make no law . . . abridging the freedom of
speech.” What does this mean?
• Can state legislatures pass laws curtailing
their citizens' free speech?
• Incorporation: The process by which certain
provisions of the Bill of Rights have been
made applicable to the states.
• Selective Incorporation: As America entered
the 20th century, the Supreme Court slowly
began to inform state governments that they
too must abide by most guarantees contained
in the first 8 amendments to the federal
Constitutional Convention
• Before the Framers adjourned the convention, "It
was moved and seconded to appoint a
Committee to prepare a Bill of Rights." The
motion, however, was defeated.
James Madison
• James Madison submitted to
the First Congress a list of 17
amendments, mostly aimed at
safeguarding personal
freedoms against tyranny by the
federal government.
• June 7, 1789: In a speech to the
House, he suggested that "in
revising the Constitution, we
may throw into that section,
which interdicts the abuse of
certain powers of the State
legislatures, some other
provision of equal, if not greater
importance than those already
James Madison
• Madison's proposed 14th
amendment said that "no State
shall violate the equal right of
conscience, freedom of the
press, or trial by jury in criminal
cases." This article failed to
garner congressional approval,
so the states never considered it.
• Although scholars now agree
that Madison viewed this
amendment as the most
significant among the 17 he
proposed, Congress's refusal to
adopt it may have meant that the
Founders never intended for the
Bill of Rights to be applied to the
states or local governments.
Barron v. Baltimore (1833)
• The first case in which the U.S.
Supreme Court considered
nationalizing the Bill of Rights.
• A wharf owner sued the city of
Baltimore for economic loss
occasioned by the city’s
diversion of streams, which
lowered the water level around
his wharves. He claimed that
the city took his property
without just compensation in
violation of the 5th Amendment,
which states: “. . . nor shall
private property be taken
without just compensation.”
• Does the 5th Amendment apply
to state governments?
Chief Justice John Marshall
• “Had the framers of the [Bill of Rights]
intended them to be limitations on the
powers of state governments, they
would have imitated the framers of the
original constitution, and have
expressed that intention.”
• “It is universally understood, it is part
of the history of the day, that the great
revolution which established the
constitution of the United States, was
not effected without immense
opposition. . . . In compliance with a
sentiment thus generally expressed, to
quiet fears thus extensively
entertained, amendments were
proposed by the required majority in
congress, and adopted by the states.
These amendments contain no
expression indicating an intention to
apply them to the state governments.
This court cannot so apply them.”
• What resulted from Barron?
• From the 1830s until the Civil War southern
states made speech and publication critical of
slavery a crime.
• A number of leading Republicans viewed these
statutes as violations of the 1st Amendment
and other provisions of the Constitution.
• Immediately after the Civil War, Republicans
complained that southern states were denying
African-Americans, Republicans, and loyalist
citizens basic rights to free speech and press,
to due process, and to bear arms.
Privileges or Immunities
Clause →
Due Process Clause →
Equal Protection Clause →
Amendment (1868)
• “No state shall:
• make or enforce any law
which shall abridge the
privileges or immunities of
citizens of the United States;
• nor shall any state deprive
any person of life, liberty, or
property, without due process
of law;
• nor deny to any person within
its jurisdiction the equal
protection of the laws.”
The Slaughterhouse Cases (1873)
• Does the Privileges or Immunities
Clause of the 14th Amendment
“incorporate” or make applicable
the Bill of Rights to the states?
• “We are convinced that no such
results were intended by the
Congress which proposed these
amendments, nor by the
legislatures of the States which
ratified them.”
• Miller’s opinion had the effect
rendering the Privileges or
Immunities Clause virtually
useless, a condition that has
changed little since then. Today,
the Clause remains a virtual nonstarter in the law.
Justice Samuel Freeman Miller
Hurtado v. California (1884)
Justice Stanley Matthews
• Does the Due Process Clause of the 14th
Amendment “incorporate” the Bill of
• The case involved a state prosecution of
murder without a grand jury indictment.
• The 5th Amendment states: “No person
shall be held to answer for a capital, or
otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury
. . . nor be deprived of life, liberty, or
property, without due process of law.”
• Does the 5th Amendment’s protection of a
grand jury apply to state governments?
• The Court explained that unlike the 14th
Amendment, the 5th Amendment states
that persons are guaranteed both due
process and grand jury protections. Since
the 14th only lists due process, grand jury
indictment is not part of that phrase.
• Therefore, the 14th Amendment’s Due
Process Clause does NOT incorporate the
5th Amendment’s grand jury provision.
Chicago, Burlington & Quincy
Railroad v. Chicago (1897)
• The case involved the Takings Clause of the 5th Amendment –
just as in Barron. Chicago took railroad property but paid the
companies only $1.
• Attorneys now agued that the 14th Amendment’s Due Process
Clause incorporated the 5th Amendment’s Takings Clause.
• The Court held that the Takings Clause constituted “a vital
principle of republican institutions” without which “almost all
other rights would become worthless.”
• The railroad companies won. But more importantly, for the first
time the Court incorporated a clause contained in the Bill of
• Yet, in the next incorporation case, Maxwell v. Dow (1900), a
state criminal defendant was denied a grand jury indictment and
was tried by an 8-person jury rather than the traditional 12person jury. The Court refused to incorporate protections listed
in the 5th and 6th Amendments holding “Trial by jury has never
been affirmed to be a necessary requisite of due process of
Twining v. New Jersey (1908)
A Standard Emerges
• The Court held: “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. . . . This court has
always declined to give a
comprehensive definition of it, and
has preferred that its full meaning
should be gradually ascertained by
the process of inclusion and exclusion
in the course of the decisions of
cases as they arise.”
Justice William H. Moody
Gitlow v. New York (1925)
Justice Edward T. Sanford
• “For present purposes we
may and do assume that
freedom of speech and of
the press . . . are among the
fundamental personal
rights and ‘liberties’
protected by the due
process clause of the
Fourteenth Amendment
from impairment by the
states . . . . Reasonably
limited . . . This freedom is
an inestimable privilege in
a free government.”
Palko v. Connecticut (1937)
• The Due Process Clause of
the 14th Amendment
incorporates those rights
which are “implicit in the
concept of ordered liberty”
and which constitute “the
very essence of a scheme or
ordered liberty.”
• “If the Fourteenth Amendment
has absorbed them, the
process of absorption has
had its source in the belief
that neither liberty nor justice
would exist if they were
Justice Benjamin Cardozo
Applying the Palko Standard
• In the aftermath of Palko, the Court
continued to selectively incorporate
provisions of the Bill of Rights.
Why? This was a compromise
position among various members of
the Court.
• Liberal Justices Hugo Black and
William O. Douglas argued that the
14th Amendment intended to make
all of the provisions of the Bill of
Rights applicable to the states
• Moderate conservative Justices
John Marshall Harlan and Potter
Stewart said that the due process
guaranteed by the 14th Amendment
was meant neither to incorporate,
nor to be limited to, the specific
guarantees of the Bill of Rights.
Attacks from the New Right
• In the 1980s, Attorney General Edwin
Meese and others criticized incorporation
as inconsistent with the intent of the
Framers of the Constitution.
• Justice Clarence Thomas has explained,
“The text and history of the Establishment
Clause strongly suggest that it is a
federalism provision intended to prevent
Congress from interfering with state
establishments. Thus . . . it makes little
sense to incorporate the Establishment
• Under this formulation, can the state of
Illinois establish a church?
Today . . .
• Today, essentially all of the important provisions of the Bill of
Rights have been incorporated.
• 1st Amendment: Fully incorporated.
• 2nd Amendment: Supreme Court rejected incorporation
in 1876 and avoided the issue in D.C. v. Heller (2008).
• 3rd Amendment: No Supreme Court decision; 2nd
Circuit found to be incorporated.
• 4th Amendment: Fully incorporated.
• 5th Amendment: Incorporated except for clause
guaranteeing criminal prosecution only on a grand jury
• 6th Amendment: Fully incorporated.
• 7th Amendment: Not incorporated.
• 8th Amendment: Incorporated with respect to the
protection against "cruel and unusual punishments," but
no specific Supreme Court ruling on the incorporation of
the "excessive fines" and "excessive bail" protections.
Resurrecting the Privileges or Immunities Clause?
In D.C. v. Heller (2008) the Court held that the 2nd Amendment protects the right of
individuals in Washington, DC to posses handguns in the home. Yet the Court did not rule on
whether the right also applied to the states. But in his majority opinion, Justice Antonin Scalia
hinted in a footnote that a more thorough examination of the 14th Amendment may be in
Currently, there is a case—McDonald v. Chicago—pending in the 7th U.S. Circuit Court of
Appeals which involves Chicago’s ban on handguns. No matter how the 7th Circuit rules, the
case will be appealed to the U.S. Supreme Court.
Why might the Court take the case? Because both liberals and conservatives have joined
forces in arguing that the basis for incorporating the 2nd Amendment is the Privileges or
Immunities Clause of the 14th Amendment.
Furthermore, as Scalia’s footnote in Heller suggests, some of the justices seem open to
revisiting the incorporation controversy. For example, in Saenz v. Roe (1999) where the Court
struck down a California law that gave lesser welfare benefits to new residents, Justice John
Paul Stevens relied on the Clause as protecting the right to travel and reside in any state one
In dissent, Chief Justice Rehnquist criticized what he saw as the Court “breathing new life”
into the Clause. Justice Clarence Thomas agreed but said that he was open to reexamining
it: “Although the majority appears to breathe new life into the Clause today, it fails to address
its historical underpinnings or its place in our constitutional jurisprudence. Because I believe
that the demise of the Privileges or Immunities Clause has contributed in no small part to the
current disarray of our Fourteenth Amendment jurisprudence, I would be open to reevaluating
its meaning in an appropriate case. Before invoking the Clause, however, we should
endeavor to understand what the Framers of the Fourteenth Amendment thought that it
meant. We should also consider whether the Clause should displace, rather than augment,
portions of our equal protection and substantive due process jurisprudence. The majority's
failure to consider these important questions raises the specter that the Privileges or
Immunities Clause will become yet another convenient tool for inventing new rights.”
• The theory of selective incorporation, in concept, emerged
the victor; but, for all practical purposes and with only a few
exceptions, total nationalization, via the Due Process
Clause, has prevailed.
• As a result, present reading of the Constitution now ensures
that the basic civil liberties of citizens of the United States
are largely protected against infringement by any
government entity—federal, state, or local.
• Yet the recent moves toward resurrecting the Privileges and
Immunities Clause could have unforeseen implications.
Some liberals argue that invoking the Clause would have a
"lift-all-boats" effect, strengthening free speech, and
possibly even abortion and gay rights, at the same time that
it bolsters the right to bear arms. On the other hand,
conservatives see the Clause as potentially strengthening
some rights—such as the right to bear arms—while
weakening others that they have never believed are in the
Constitution such as a right to privacy, abortion, and gay