Incorporation
Applying the Bill of
Rights to the States
Bill of Rights Institute
Cortopassi Seminars
Seattle Pacific University
Seattle, Washington
March 4, 2008
Artemus Ward
Department of Political Science
Northern Illinois University
aeward@niu.edu
http://polisci.niu.edu/polisci/faculty/ward
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 Constitution.
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 made."
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.”
1833-1866
 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.
The 14th Amendment (1868)
Privileges or Immunities
Clause →
Due Process Clause →
Equal Protection Clause →
 “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. The Clause is a virtual
non-starter 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
Rights?
 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
Rights.
 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
law.”
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
sacrificed.”
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.
Today . . .
 Today, essentially all of the important provisions of the Bill of
Rights have been incorporated.
 1st Amendment: Fully incorporated.
 2nd Amendment: No Supreme Court decision on
incorporation since 1876 (when it was rejected).
 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
indictment.
 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.
Attacks from the New
Right Regime
 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 Clause.
 Under this formulation, can the state of Washington
establish a church?
Conclusion
 The theory of selective incorporation, in
concept, emerged the victor; but, for all
practical purposes and with only a few
exceptions, total nationalization has
prevailed.
 As a result, present reading of the
Constitution now ensures that the basic
civil liberties of citizens of the United
States are uniformly protected against
infringement by any government entity—
federal, state, or local.