Talk:Incorporation of the Bill of Rights

Incorporation Timeline

I've added a lot of cases to the incorporation timeline. Many are wiki-linked, some aren't. Those that are not, I will try to get around to writing up a brief description of them sometime soon. Also, I added as a reference the book I pulled this timeline from (it has rights incorporated by year with endnotes to the relevant cases; all description of the cases was either already in the article or is my own). SS451 06:12, 21 September 2005 (UTC)

Incorporation/Original Intent

I would bristle at any attempt to say that incorporation is historically compelled. For one thing, the suggestion is POV as there has been much written to oppose this view-- R. Berger, e.g. The original Bill of Rights merely stated the truism that all power not granted is reserved, so it seemed natural that the "incorporated" Bill of Rights would not interfere with the existing "police power" of the states-- and I'm sure this was stated in the Cong. Globe. I also think the evidence that the framers of the 14th meant to incorporate the procedural elements of the Bill of Rights is exceedingly slim-- incorporation of these elements only occurred in the 1960s. Please Don't BlockPlease Don't Block

Incorporation of 2nd Amendment Uncertain

The cited reference at the end is very specific about the 2nd Amendment's Incorporation being uncertain.

"Because the Second Amendment has never been explicitly addressed in formal incorporation analysis, the conclusion that the amendment only applies to actions by the federal government has been questioned. The decisions in Cruikshank and Presser came several years before any provisions of the Bill of Rights were incorporated, thus one cannot be sure that the justices in the Second Amendment cases considered the possibility of incorporation. [No. 14]"

Therefore, I struck the claim that the 2nd Amendment is not incorporated. I did NOT add a claim that it has been. The 2nd Amendment was apparently ruled on after the 14th Amendment was ratified, but before Incorporation Theory was developed, as noted above.

That's nice speculation, but as far as actual case law goes, it's simply wrong. If a given amendment is incorporated, then there will exist a Supreme Court decision stating that it is. For privacy rights, it's Griswold v. Connecticut. For the right to counsel in a criminal defense, it's Gideon v. Wainwright. For equal rights under the law in schooling, it's Brown v. Board of Education. For abortion rights, it's Roe v. Wade. And so on. Whether or not you agree with any given one of these decisions, they are what they are. Similarly, for the Second Amendment, no such decision exists. We can speculate on it to death, but the last specific word on the subject is still Presser, which states very clearly that the Second Amendment does not affect anyone other than the federal government. Until and unless the Supreme Court takes up an appeal of a lower court citing Presser and says, "No, we're not going with that one any more," then it's not incorporated. There's nothing uncertain about that. StiltMonster 01:46, 19 November 2006 (UTC)

Both of the men who proposed the bill containing what would become known as Article the 14th of Amendment, Rep. John Bingham of OH and Sen. Jacob Howard of MI, clearly stated in the Congressional debates on the amendment bill that its purpose was to incorporate all of the civil liberties and amendments of the Bill of Rights, including A2A and the right to bear arms. Neither man excepted that amendment; neither did any of the other participants in the debate.

It is problematic, and ironic, that the US Supreme Court has nevertheless presumed to ignore that clearly stated original intent and to subsequently insert this "uncertainty". --BEAST

I agree, to an extent. However, there's a certain amount of question as to which amendments really are necessary for this purpose. The Third Amendment (forbidding quartering troops in private citizens' homes in peacetime without their consent), for instance, makes absolutely no sense whatsoever to hold against the states, because the states aren't allowed to keep troops in the first place. Conversely, the Second Amendment's main thrust was to prevent the federal government from using their militia powers to prescribe an armament scheme for the militia that amounts to DISarming them. Regardless of what other argument we might get into about it, the amendment is a complete non-sequitor in basically any other interpretation -- Congress clearly doesn't have the power to forbid all private possession of firearms anyway. (Which, incidentally, is the only grounds under which federal firearms laws have ever been stricken down in court -- not under the Second Amendment, but under the Tenth Amendment.) As such, given that the Second Amendment requires that the feds prescribe something that's actually a real armament for the militia, seperately interpreting the militia against the states is pointless, because the states aren't allowed to disobey the federal prescription. So in the case of the Second Amendment, holding it against the feds is enough, because the states don't have a seperate power to disarm the militias in defiance of federal militia law anyway. StiltMonster 21:12, 3 February 2007 (UTC)

Could someone explain why the word "not yet incorporated" is used for the Second Amendment, while the other non-incorporated simply state 'not incorporated'. The word 'yet' seems superfluous and literally everything imaginable (and many things not) have not 'yet' happened. The policy is that WP:NOT#Wikipedia_is_not_a_crystal_ball, and the word 'yet' amounts to a prediction, and appears disallowed by policy. SaltyBoatr 16:09, 19 April 2007 (UTC)

It has to do with Justice Black's dicta related to Palko v. Connecticut contained in Duncan v. Louisiana related to Amendments dealing with ordered liberty. Current text has the complete link with references. Yaf 18:42, 19 April 2007 (UTC)

The Supreme Court has never accepted the argument that the Fourteenth Amendment incorporated the entirety of the Bill of Rights. Hugo Black was in the minority. You have not addressed my concern that Wikipedia should not involve predictions of the future. SaltyBoatr 21:50, 19 April 2007 (UTC)

The Second Amendment will be tricky to incorporate. The Johnson Administration had allowed for some rebel states to impose firearms and ammo ban on blacks who did not have a license to own, or a member of a black militia. Republicans argued that was unconstitutional because of the 2A as the rebel states were under federal jurisdiction. However, most everyone agreed once the rebel states were restored as states of the union, all those post-war laws that protected blacks under the federal bill of rights would cease under new republican state laws and state constitution's. So clearly, the 39th-41st Congress viewed 2A issues as strictly a federal limitation and not a State limitation. —Preceding unsigned comment added by LawPro (talk • contribs) 05:24, 2 April 2008 (UTC)

What are you reading that says this? SaltyBoatr (talk) 14:37, 2 April 2008 (UTC)

Congressional Globe Reconstruction Debates 39th & 40th Congress. LawPro (talk) 04:30, 3 April 2008 (UTC)

Someone changed the page today to claim that Heller incorporates the 2nd Amendment. It does not, as the majority opinion itself explicitly points out at note 23. Mgy401 1912 (talk) 16:44, 26 June 2008 (UTC)

You're absolutely right. Heller did not incorporate the 2nd Amendment. However, the implication of this decision does seem to leave that as an open question. I think it should at least be mentioned in the article. Rreagan007 (talk) 20:22, 26 June 2008 (UTC)

The majority was absolutely clear in Heller that they are not incorporating the Second Amendment, but they also suggest pretty strongly that they would incorporate it should that question present itself appropriately as a case or controversy, slip opinion 07-290, 51 fn 23: "With respect to Cruikshank's continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases." I would support including that exact sentence, properly cited, in the article. Zigamorph (talk) 00:05, 4 July 2008 (UTC)

Have added detailed content to include this exact sentence. Yaf (talk) 01:05, 30 December 2008 (UTC)

Incorporation is not a 'doctrine' - a dogma that must be adhered to - it is rather a 'legal process.' Incorporation is not an option for a court. It came into existence in 1868 with the 14th Amendment. If a citizen has been deprived of a right, without due process of law, he may file a lawsuit in a federal District Court, setting forth the facts and evidence of such deprivation, and the relief sought. If the Court agrees it will issue an order, to which your State must comply. For example, if one has been denied posession of a firearm, while other fellow-state citizens have not been so-denied, the court will issue an order to show cause, to the offending state agency, why you were so-denied, or cease and desist from the deprivation. That's the legal process which came to be referred to as 'incorporation.' In a sense, it would apply the 2A's "shall not be infringed' to state law, but actually, it just forces your state to apply its firearms laws equally. That is, the process doesn't create or transfer the 'right' - rights are inalienable - it just forces your State to recognize your right. Todate, no one has done that. That's what Heller meant, in footnote 23, by "incorporation, a question not presented by this case" and "the Second Amendment applies only to the Federal Government." (Truwik (talk) 20:20, 2 March 2009 (UTC))

Change of "Incorporation timeline" subhead and content to "Which rights have been incorporated?"

With apologies to the previous contributor, I have changed this subhead and its content to include a hopefully exhaustive list of the rights that have been incorporated, listed by amendment by clause (i.e., individual right). I felt this would be more useful to people who want a quick view of which rights have been incorporated and the respective cases (users can reconstruct a timeline using the dates shown). I added citations to each case and hyperlinked as much as possible. I retained the commentary on existing cases and added some commentary to those cases/rights not previously listed. There seems to be some minor disagreement (above) on those rights that have not been explicitly incorporated; I tried to retain consistency between my list and the text at the top of this article. In a few cases, I wrote, "Has not been incorporated." Feel free to doublecheck this, of course.

Original Intent

When the initial author and sponsor of the 14th Amendment, Representative John Bingham of Ohio, advocated for the amendment in Congress in 1866, he repeatedly stated that the aim or intent was to allow Congress to be able to enforce the Bill of Rights against state action. He said that he considered the civil rights contained therein to be the same sort of immunities and privileges as had been mentioned within the body of the Constitution. Even his opposition acknowledged this intent.

In submitting the amendment for consideration in the Senate, a colleague of Bingham from the Joint Conference Committee on Reconstruction, Senator Howard of Michigan, reiterated the argument that the Bill of Rights would be applied to the states through the "privileges or immunities" clause of the amendment.

It must be noted that neither gentleman (nor apparently any of the other speakers in the debate) alleged that those rights within the Bill of Rights were to be applied to state powers, or incorporated within the states, by way of the "due process" clause. The stated link was explicitly the "privileges or immunities" clause.

Also, none of the participants excepted the 2nd Amendment right to bear arms nor the 5th Amendment right to grand jury indictment/presentment, as the US Supreme Court has done.

In fact, contemporary statutory legislation being considered in Congress at the same time as the 14th Amendment, the Freedmen's Bureau Bill and the Civil Right Act of 1866 Bill, both aimed, in part, to enforce against state action the right of Blacks to bear arms for self-defense. This right was deemed to be a fundamental privilege of US citizenship, and so was extended by these bills to Blacks as well as Whites. Both bills passed.

(Congressional Globe, 39th Congress, 1st Session, 1866)

Selective incorporation is a judicial construct calculated to prop up the ephemeral arbitrary choice of US Supreme Court judges above the law itself. If judges deem a right to be sufficiently "fundamental", then the right is incorporated. If the judges do not approve of a particular right, or deem steadfast enforcement of the right to be too cumbersome, then they arbitrarily deem the right to be insufficiently "fundamental", and decide that the appellant is not entitled to that right via due process.

All of which violates the intent of the framers of the amendment, who clearly stated that all of the rights within the Bill of Rights were supposed to be held applicable to the states, and not just the ones that a majority of judges happen to personally approve of at any given moment in time.

Slaughterhouse Cases

I removed the description of the Slaughterhouse Cases. It didn't belong in the lead and it was misleading, in that it suggested that the practical effects of the Slaughterhouse Cases were less than they were. The plain fact is that the Privileges and Immunities Clause was effectively written out of the Constitution by the Slaughterhouse Cases, and no Court has ever expressed interest in changing that. It's fine to state that there may have been Congressional intent to incorporate through the P&I Clause, it's fine to say that some scholars have suggested that going through P&I would be a better idea, but to say or imply that the P&I Clause, rather than the Due Process Clause, is the legal basis for incorporation is flat wrong. SS451 10:06, 13 May 2007 (UTC)

I've created a new section, in order to breifly address the Slaughterhouse Cases, with supporting footnotes.Ferrylodge 15:08, 13 May 2007 (UTC)

Incorporation of "article the second" (27th Amendment) ?

This is probably a silly question, and if so, I apologize.

I cannot help but wonder, however, if one could argue in Federal court that the 27th amendment (originally article the second of the Bill of Rights) can be incorporated to the states. It was proposed by James Madison, in the 1st Congress, as part of the Bill of Rights, but was not ratified by 3/4 of the states until over a century after the 14th Amendment ---which gave rise to the Doctrine of Incorporation--- was.

In 1992, Michigan became the 38th state to ratify it, in part due to voter outrage at the 40% pay raise that Congress voted itself the prior year. More recently (March 8th, 2007, to be precise) the Alabama state legislature voted for itself a 62% pay raise that immediately went into effect. In theory, could a motion be filed in M.D. Ala. arguing that under the 27th Amendment mandates that the Alabama legislative pay raise cannot take effect until after a legislative election in Alabama shall have intervened?

I'm curious as to whether this could open up a whole new dimension to American constitutional law. Pine 23:37, 5 September 2007 (UTC)

Why was "incorporation" needed?

Beyond the 1st Amendment (which forbids certain types of laws from being passed by Congress), none of the other amendments make any mention of federal government. The rest don't say that the rights listed cannot be violated by the federal government, they say that those rights can't be violated, period. Thus, there has never been any valid legal basis for amendments 2 through 8 to be considered inapplicable to state governments. Any rulings to the contrary flatly ignore the letter of the law. 71.203.209.0 (talk) 04:54, 21 November 2007 (UTC)

Actually, the 10th amendment reads... "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." [my own emphasis].

Prior to the American Civil War, it was up to each individual state to decide which rights (even basic human rights) it could reserve for the sovreign, or dispense at will. After the ratification of the 14th amendment, many rights which were previously reserved for just the sovreign --or wealthy landowners, white people, etc.-- started being spread around to include all people.

Because of the constitution's SEPARATION OF POWERS clause, however, neither congress nor the president have the right to use the 14th Amendment to INCORPORATE basic human rights to all Americans at the STATE level; only the judiciary has that right. (it's not fair, but it's the best system of government on Earth, for over 200 years now. :) ).Pine (talk) 02:00, 18 January 2008 (UTC)

Actually, I disagree with your statement that "neither congress nor the president have the right to use the 14th Amendment to incorporate basic human rights to all Americans at the State level." Section 5 of the fourteenth amendment states that "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." Clearly Congress should have had the power to extend civil rights to all Americans, and they tried to do so in the Civil Rights Act of 1875. Unfortunately, in a horrible ruling, the Supreme Court struck that down as being unconstitutional. It wasn't until almost 100 years later when Congress tried again in the Civil Rights Act of 1964, but unfortunately the Congress had to pass it under the Commerce Clause, which was also bad because it stretched the Commerce Clause beyond what it was intended to be. But they had no choice because of the Supreme Court's incorrect ruling on the 1875 Act. It's always funny to me when people see the Supreme Court as the champion of basic human rights when it was the Court that precipitated the Civil War in the first place with their Dred Scott Decision and then held back civil rights in this country for 100 years after the war had ended. Rreagan007 (talk) 15:44, 28 June 2008 (UTC)

Right to a unanimous jury decision (Apodaca v. Oregon)

I'm removing this portion (under Sixth Amendment) for now:

Right to a unanimous jury decision

• This right has not been incorporated against the states. See Apodaca v. Oregon. The Supreme Court has held that 11-1 or 10-2 jury votes are sufficient.

That's not really what Apodaca held. The four-justice plurality held that there was no constitutional right to a unanimous verdict. Only a single justice, Justice Powell, concurring in the judgment, held the position that this item is saying: that there is a constitutional right to a unanimous jury decision, but that that right is not incorporated against the states. Four dissenting justices held the view that there was such a constitutional right, and that it should be incorporated against the states.

If this was rewritten to address these subtleties, I wouldn't object to it. And, yeahm I see the Apodaca v. Oregon article gets it wrong, too. I'll drop a note over there as well. 06:20, 14 September 2008 (UTC)

(postscript) I've now edited Apodaca v. Oregon accordingly. TJRC (talk) 06:34, 14 September 2008 (UTC)

Incorporation Cases

I'm currently in a law class, and some of our cases for incorporation differ from the list on the page:

First Amendment: Speech/Press- Gitlow v. New York Assembly- DeJonge v. Oregon Petition- Hague v. CIO Free Exercise- Cantwell v. Connecticut Establishment- Everson v. Board of Education

Fourth Amendment: Unreasonable Search and Seizue- Wolf v. Colorado Exclusionary Rule- Mapp v. Ohio

Fifth Amendmnet: Payment of compensation for the taking of private property- Chicago, Burlington and Quincy Railroad Company v. Chicago: Self-Incrimination- Malloy v. Hogan: Double Jeopardy- Benton v. Maryland: When jeopardy attaches- Critz v. Bretz:

Sixth Amendment: Public Trial- In re Oliver Due notice- Cole v. Arkansas Right to Counsel (felonies)- Gideon v. Wainwright Confrontation and Cross-Examination of Witnesses- Pointer v. Texas Speedy Trial- Klopfer v. North Carolina Compulsory process to obtain witnesses- Washington v. Texas Jury Trial- Duncan v. Louisiana Right to counsel (misdemeanor when jail is possible)- Argersinger v. Hamlin

Eighth Amendment: Cruel and Unusual Punishment- Louisiana ex rel. Francis v. Resweber

Ninth Amendmetn: Privacy- Griswold v. Connecticut

Casey14 (talk) 22:53, 18 November 2008 (UTC)

1890s origin

intro says this, and the second section talks about the railroad case... that case only hinted that the 14th might require states to adhere to the bill of rights. the case had zero implications toward individual liberties. suggest these things get rewritten to reflect that. Foofighter20x (talk) 19:35, 30 November 2008 (UTC)