Incorporation (Bill of Rights)
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| The Bill of Rights |
|
| First ten amendments to the United States Constitution |
| First Amendment |
| Second Amendment |
| Third Amendment |
| Fourth Amendment |
| Fifth Amendment |
| Sixth Amendment |
| Seventh Amendment |
| Eighth Amendment |
| Ninth Amendment |
| Tenth Amendment |
Though the Bill of Rights was originally written to limit only the power of the federal government, the Supreme Court has ruled that most of its guarantees protect citizens against state governments. Because the Slaughterhouse Cases of 1872 found only a very limited number of privileges inherent in federal citizenship, the Privileges or Immunities Clause of the Fourteenth Amendment has not been used to incorporate the Bill of Rights. This has meant that the Due Process Clause was the means by which incorporation occurred.
Origins
The genesis of incorporation has been traced back to either Chicago, Burlington & Quincy Railway Co. v. Chicago (1897) in which the Supreme Court appeared to require some form of just compensation 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 (1925), in which the Court expressly held that States were bound to observe First Amendment free speech protections. 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 has not yet been addressed, are the Second Amendment right to bear arms, the Fifth Amendment right to an indictment by a grand jury, the Seventh Amendment right to a jury trial in civil lawsuits, and the Sixth Amendment's implicit command that a criminal jury can consist only of twelve members and must reach a unanimous verdict.Incorporation applies both procedural and substantive guarantees to 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 has declined, however, to apply new procedural constitutional rights retroactively against the states in criminal cases (Stone v. Powell) with limited exceptions, and it has waived constitutional requirements if the states can prove that a constitutional violation was "harmless beyond a reasonable doubt."
There are, however, some substantive guarantees whose incorporation the Supreme Court has not yet ruled on— for example, the Third Amendment right against quartering soldiers in private homes.
Complete Incorporation
As the incorporation drive picked up speed in the 1940s and '50s, disagreements over the method that ought to be taken in making Bill of Rights guarantees enforceable to the States emerged. One school of thought, championed by Justice Hugo Black, was total incorporation. Black felt that the Fourteenth Amendment required that the States respect all of the enumerated rights set forth in the first eight amendments, but did not wish to see the doctrine expanded to include other, unenumerated "fundamental rights" such as those described in the Ninth Amendment. Black felt that his formulation eliminated any arbitrariness or caprice in deciding what the Fourteenth Amendment ought to protect, by sticking to words already to be found in the Constitution.Selective Incorporation
Justice Felix Frankfurter, 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 abridgement would "shock the conscience," as he put it in Rochin v. California (1952). Frankfurter's incrementalist approach did carry the day, but the end result is very nearly what Justice Black advocated, with the exceptions noted above.Timeline of incorporation
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 Court of the 1960s, famous for its concern for the rights of those accused of crimes, brought state standards in line with federal requirements.
- Assistance of Counsel (Capital Criminal Cases)
- *Powell v. Alabama (1932)
- Public Trial
- *In re Oliver (1948)
- Right Against Unreasonable Search and Seizure
- *Wolf v. Colorado (1949): The Court held that although the Fourth Amendment applied to the states, the exclusionary rule (unconstitionally obtained evidence cannot be used at trial), which the Court had been held to be an essential corollary to the Fourth Amendment, did not. The Court later incorporated the exclusionary rule in Mapp v. Ohio (1961).
- Assistance of Counsel (All Felony Cases)
- *Gideon v. Wainwright (1963)
- Right Against Self-Incrimination
- *Malloy v. Hogan (1964)
- Right to Confront Adverse Witnesses
- *Pointer v. Texas (1965)
- Miranda Warning
- *Miranda v. Arizona (1966): The Court held that what is now called the Miranda Warning was an essential corollary to the Fifth Amendment right against self-incrimination and the Sixth Amendment right to assistance of counsel.
- Right to Speedy Trial
- *Klopfer v. North Carolina (1967)
- Right to Compulsory Process to Obtain Witness Testimony
- *Washington v. Texas (1967)
- Trial by Jury
- *Duncan v. Louisiana (1968): The Court held that in state criminal proceedings, where a person could be sentenced to a significant time in prison, he or she had a right to a trial by jury.
- Right to Notice of Accusation
- *Rabe v. Washington (1972)
- Right to Counsel (Imprisonable Misdemeanor Cases)
- *Argersinger v. Hamlin (1972)
- Right to Unanimous Jury Verdict
- *Burch v. Louisiana (1979): The Court has never incorporated the Sixth Amendment's implicit guarantee that convictions be obtained only from unanimous twelve-member juries, but in Burch, the Justices did hold that when as few as six jurors are empanelled, their verdict must be unanimous.
References
- P.A. Madison's [A Dummies Guide to Understanding the Fourteenth Amendment]
- J. Lieberman (1999). A Practical Companion to the Constitution. Berkeley: University of California Press.
- Regina McClendon, Public Law Research Institute (1994) (stating that "[t]he almost total incorporation of the Bill of Rights lends support to the theory that incorporation of the Second Amendment is inevitable").[link]
External Links
- A First Amendment [incorporation chart]
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