IncorporationIncorporation

Applying the Bill of Applying the Bill of Rights to the StatesRights to the States

Bill of Rights InstituteCortopassi SeminarsSeattle Pacific UniversitySeattle, WashingtonMarch 4, 2008

Artemus WardDepartment of Political ScienceNorthern Illinois Universityaeward@niu.eduhttp://polisci.niu.edu/polisci/faculty/ward

What is the Bill of Rights?What is the Bill of Rights? The first 10 The first 10

Amendments to the U.S. Amendments to the U.S. Constitution.Constitution.

Passed by the first Passed by the first Congress in 1791.Congress in 1791.

The Bill of Rights was The Bill of Rights was added to the Constitution added to the Constitution because of the fear that because of the fear that the federal government the federal government might become too might become too powerful and encroach powerful and encroach on individual rights. on individual rights.

What is Incorporation?What is Incorporation? Consider the 1st Amendment: "Congress Consider the 1st Amendment: "Congress

shall make no law . . . abridging the freedom shall make no law . . . abridging the freedom of speech.” What does this mean?of speech.” What does this mean?

Can state legislatures pass laws curtailing Can state legislatures pass laws curtailing their citizens' free speech?their citizens' free speech?

Incorporation: The process by which Incorporation: The process by which certain provisions of the Bill of Rights have certain provisions of the Bill of Rights have been made applicable to the states.been made applicable to the states.

Selective Incorporation: As America Selective Incorporation: As America entered the 20th century, the Supreme entered the 20th century, the Supreme Court slowly began to inform state Court slowly began to inform state governments that they too must abide by governments that they too must abide by most guarantees contained in the first 8 most guarantees contained in the first 8 amendments to the federal Constitution.amendments to the federal Constitution.

Constitutional Constitutional ConventionConvention

Before the Framers adjourned the convention, "It Before the Framers adjourned the convention, "It was moved and seconded to appoint a was moved and seconded to appoint a Committee to prepare a Bill of Rights." The Committee to prepare a Bill of Rights." The motion, however, was defeated. motion, however, was defeated.

James MadisonJames Madison James Madison submitted to James Madison submitted to

the First Congress a list of the First Congress a list of 17 amendments, mostly 17 amendments, mostly aimed at safeguarding aimed at safeguarding personal freedoms against personal freedoms against tyranny by the federal tyranny by the federal government.government.

June 7, 1789: In a speech to June 7, 1789: In a speech to the House, he suggested the House, he suggested that "in revising the that "in revising the Constitution, we may throw Constitution, we may throw into that section, which into that section, which interdicts the abuse of interdicts the abuse of certain powers of the State certain powers of the State legislatures, some other legislatures, some other provision of equal, if not provision of equal, if not greater importance than greater importance than those already made."those already made."

James MadisonJames Madison Madison's proposed 14th Madison's proposed 14th

amendment said that "no amendment said that "no State shall violate the equal State shall violate the equal right of conscience, freedom right of conscience, freedom of the press, or trial by jury in of the press, or trial by jury in criminal cases." This article criminal cases." This article failed to garner congressional failed to garner congressional approval, so the states never approval, so the states never considered it.considered it.

Although scholars now agree Although scholars now agree that Madison viewed this that Madison viewed this amendment as the most amendment as the most significant among the 17 he significant among the 17 he proposed, Congress's refusal proposed, Congress's refusal to adopt it may have meant to adopt it may have meant that the Founders never that the Founders never intended for the Bill of Rights intended for the Bill of Rights to be applied to the states or to be applied to the states or local governments.local governments.

Barron v. Baltimore Barron v. Baltimore (1833)(1833)

The first case in which the U.S. The first case in which the U.S. Supreme Court considered Supreme Court considered nationalizing the Bill of Rights.nationalizing the Bill of Rights.

A wharf owner sued the city of A wharf owner sued the city of Baltimore for economic loss Baltimore for economic loss occasioned by the city’s occasioned by the city’s diversion of streams, which diversion of streams, which lowered the water level around lowered the water level around his wharves. He claimed that his wharves. He claimed that the city took his property the city took his property without just compensation in without just compensation in violation of the 5violation of the 5thth Amendment, Amendment, which states: “. . . nor shall which states: “. . . nor shall private property be taken private property be taken without just compensation.”without just compensation.”

Does the 5Does the 5thth Amendment apply Amendment apply to state governments?to state governments?

Chief Justice John MarshallChief Justice John Marshall ““Had the framers of the [Bill of Had the framers of the [Bill of

Rights] intended them to be Rights] intended them to be limitations on the powers of state limitations on the powers of state governments, they would have governments, they would have imitated the framers of the original imitated the framers of the original constitution, and have expressed that constitution, and have expressed that intention.”intention.”

““It is universally understood, it is part It is universally understood, it is part of the history of the day, that the of the history of the day, that the great revolution which established great revolution which established the constitution of the United States, the constitution of the United States, was not effected without immense was not effected without immense opposition. . . . In compliance with a opposition. . . . In compliance with a sentiment thus generally expressed, sentiment thus generally expressed, to quiet fears thus extensively to quiet fears thus extensively entertained, amendments were entertained, amendments were proposed by the required majority in proposed by the required majority in congress, and adopted by the states. congress, and adopted by the states. These amendments contain no These amendments contain no expression indicating an intention to expression indicating an intention to apply them to the state governments. apply them to the state governments. This court cannot so apply them.”This court cannot so apply them.”

1833-18661833-1866 What resulted from What resulted from BarronBarron?? From the 1830s until the Civil War southern From the 1830s until the Civil War southern

states made speech and publication critical of states made speech and publication critical of slavery a crime.slavery a crime.

A number of leading Republicans viewed these A number of leading Republicans viewed these statutes as violations of the 1statutes as violations of the 1stst Amendment Amendment and other provisions of the Constitution.and other provisions of the Constitution.

Immediately after the Civil War, Republicans Immediately after the Civil War, Republicans complained that southern states were denying complained that southern states were denying African-Americans, Republicans, and loyalist African-Americans, Republicans, and loyalist citizens basic rights to free speech and press, citizens basic rights to free speech and press, to due process, and to bear arms.to due process, and to bear arms.

The 14The 14thth Amendment (1868) Amendment (1868) ““No state shall:No state shall: make or enforce any law make or enforce any law

which shall abridge the which shall abridge the privileges or immunities of privileges or immunities of citizens of the United States;citizens of the United States;

nor shall any state deprive nor shall any state deprive any person of life, liberty, or any person of life, liberty, or property, without due process property, without due process of law;of law;

nor deny to any person within nor deny to any person within its jurisdiction the equal its jurisdiction the equal protection of the laws.”protection of the laws.”

Privileges or Immunities Clause →

Due Process Clause →

Equal Protection Clause →

The The Slaughterhouse Cases Slaughterhouse Cases (1873)(1873)

Does the Privileges or Immunities Does the Privileges or Immunities Clause of the 14Clause of the 14thth Amendment Amendment “incorporate” or make applicable “incorporate” or make applicable the Bill of Rights to the states?the Bill of Rights to the states?

““We are convinced that no such We are convinced that no such results were intended by the results were intended by the Congress which proposed these Congress which proposed these amendments, nor by the legislatures amendments, nor by the legislatures of the States which ratified them.”of the States which ratified them.”

Miller’s opinion had the effect Miller’s opinion had the effect rendering the Privileges or rendering the Privileges or Immunities Clause virtually useless, Immunities Clause virtually useless, a condition that has changed little a condition that has changed little since then. The Clause is a virtual since then. The Clause is a virtual non-starter in the law.non-starter in the law.

Justice Samuel Freeman Miller

Hurtado v. California Hurtado v. California (1884)(1884) Does the Due Process Clause of the 14Does the Due Process Clause of the 14thth

Amendment “incorporate” the Bill of Amendment “incorporate” the Bill of Rights?Rights?

The case involved a state prosecution of The case involved a state prosecution of murder without a grand jury indictment.murder without a grand jury indictment.

The 5The 5thth Amendment states: “No person Amendment states: “No person shall be held to answer for a capital, or shall be held to answer for a capital, or otherwise infamous crime, unless on a otherwise infamous crime, unless on a presentment or indictment of a Grand Jury presentment or indictment of a Grand Jury . . . nor be deprived of life, liberty, or . . . nor be deprived of life, liberty, or property, without due process of law.”property, without due process of law.”

Does the 5Does the 5thth Amendment’s protection of a Amendment’s protection of a grand jury apply to state governments?grand jury apply to state governments?

The Court explained that unlike the 14The Court explained that unlike the 14thth Amendment, the 5Amendment, the 5thth Amendment states Amendment states that persons are guaranteed both due that persons are guaranteed both due process and grand jury protections. Since process and grand jury protections. Since the 14the 14thth only lists due process, grand jury only lists due process, grand jury indictment is not part of that phrase.indictment is not part of that phrase.

Therefore, the 14th Amendment’s Due Therefore, the 14th Amendment’s Due Process Clause does NOT incorporate the Process Clause does NOT incorporate the 55thth Amendment’s grand jury provision. Amendment’s grand jury provision.

Justice Stanley Matthews

Chicago, Burlington & Quincy Chicago, Burlington & Quincy Railroad v. ChicagoRailroad v. Chicago (1897) (1897)

The case involved the Takings Clause of the 5The case involved the Takings Clause of the 5 thth Amendment – Amendment – just as in just as in BarronBarron. Chicago took railroad property but paid the . Chicago took railroad property but paid the companies only $1.companies only $1.

Attorneys now agued that the 14Attorneys now agued that the 14thth Amendment’s Due Process Amendment’s Due Process Clause incorporated the 5Clause incorporated the 5thth Amendment’s Takings Clause. Amendment’s Takings Clause.

The Court held that the Takings Clause constituted “a vital The Court held that the Takings Clause constituted “a vital principle of republican institutions” without which “almost all principle of republican institutions” without which “almost all other rights would become worthless.”other rights would become worthless.”

The railroad companies won. But more importantly, for the first The railroad companies won. But more importantly, for the first time the Court incorporated a clause contained in the Bill of time the Court incorporated a clause contained in the Bill of Rights.Rights.

Yet, in the next incorporation case, Yet, in the next incorporation case, Maxwell v. Dow Maxwell v. Dow (1900), a (1900), a state criminal defendant was denied a grand jury indictment and state criminal defendant was denied a grand jury indictment and was tried by an 8-person jury rather than the traditional 12-was tried by an 8-person jury rather than the traditional 12-person jury. The Court refused to incorporate protections listed person jury. The Court refused to incorporate protections listed in the 5in the 5thth and 6 and 6thth Amendments holding “Trial by jury has never Amendments holding “Trial by jury has never been affirmed to be a necessary requisite of due process of been affirmed to be a necessary requisite of due process of law.”law.”

Twining v. New Jersey Twining v. New Jersey (1908)(1908)A Standard EmergesA Standard Emerges

The Court held: “It is possible that The Court held: “It is possible that some of the personal rights some of the personal rights safeguarded by the first eight safeguarded by the first eight Amendments against National action Amendments against National action may also be safeguarded against may also be safeguarded against state action, because a denial of state action, because a denial of them would be a denial of due them would be a denial of due process of law. If this is so, it is not process of law. If this is so, it is not because those rights are enumerated because those rights are enumerated in the first eight Amendments, but in the first eight Amendments, but because they are of such a nature because they are of such a nature that they are included in the that they are included in the conception of due process of conception of due process of law. . . . This court has always law. . . . This court has always declined to give a comprehensive declined to give a comprehensive definition of it, and has preferred that definition of it, and has preferred that its full meaning should be gradually its full meaning should be gradually ascertained by the process of ascertained by the process of inclusion and exclusion in the inclusion and exclusion in the course of the decisions of cases as course of the decisions of cases as they arise.”they arise.”

Justice William H. Moody

Gitlow v. New York Gitlow v. New York (1925)(1925) ““For present purposes we For present purposes we

may and do assume that may and do assume that freedom of speech and of freedom of speech and of the press . . . are among the the press . . . are among the fundamental personal fundamental personal rights and ‘liberties’ rights and ‘liberties’ protected by the due protected by the due process clause of the process clause of the Fourteenth Amendment Fourteenth Amendment from impairment by the from impairment by the states . . . . Reasonably states . . . . Reasonably limited . . . This freedom is limited . . . This freedom is an inestimable privilege in an inestimable privilege in a free government.”a free government.”

Justice Edward T. Sanford

Palko v. Connecticut Palko v. Connecticut (1937)(1937) The Due Process Clause of The Due Process Clause of

the 14the 14thth Amendment Amendment incorporates those rights incorporates those rights which are “implicit in the which are “implicit in the concept of ordered liberty” concept of ordered liberty” and which constitute “the and which constitute “the very essence of a scheme or very essence of a scheme or ordered liberty.”ordered liberty.”

““If the Fourteenth If the Fourteenth Amendment has absorbed Amendment has absorbed them, the process of them, the process of absorption has had its absorption has had its source in the belief that source in the belief that neither liberty nor justice neither liberty nor justice would exist if they were would exist if they were sacrificed.”sacrificed.” Justice Benjamin Cardozo

Applying the Applying the Palko Palko StandardStandard In the aftermath of In the aftermath of PalkoPalko, the Court , the Court

continued to selectively continued to selectively incorporate provisions of the Bill of incorporate provisions of the Bill of Rights. Why? This was a Rights. Why? This was a compromise position among compromise position among various members of the Court.various members of the Court.

Liberal Justices Hugo Black and Liberal Justices Hugo Black and William O. Douglas argued that the William O. Douglas argued that the 1414thth Amendment intended to make Amendment intended to make all of the provisions of the Bill of all of the provisions of the Bill of Rights applicable to the statesRights applicable to the states

Moderate conservative Justices Moderate conservative Justices John Marshall Harlan and Potter John Marshall Harlan and Potter Stewart said that the due process Stewart said that the due process guaranteed by the 14guaranteed by the 14thth Amendment Amendment was meant neither to incorporate, was meant neither to incorporate, nor to be limited to, the specific nor to be limited to, the specific guarantees of the Bill of Rights.guarantees of the Bill of Rights.

Today . . . Today . . . Today, essentially all of the important provisions of the Bill of Today, essentially all of the important provisions of the Bill of

Rights have been incorporated.Rights have been incorporated. 1st Amendment1st Amendment: Fully incorporated.: Fully incorporated. 2nd Amendment2nd Amendment: No Supreme Court decision on : No Supreme Court decision on

incorporation since 1876 (when it was rejected). incorporation since 1876 (when it was rejected). 3rd Amendment3rd Amendment: No Supreme Court decision; 2nd Circuit : No Supreme Court decision; 2nd Circuit

found to be incorporated.found to be incorporated. 4th Amendment4th Amendment: Fully incorporated.: Fully incorporated. 5th Amendment5th Amendment: Incorporated except for clause : Incorporated except for clause

guaranteeing criminal prosecution only on a grand jury guaranteeing criminal prosecution only on a grand jury indictment.indictment.

6th Amendment6th Amendment: Fully incorporated.: Fully incorporated. 7th Amendment7th Amendment: Not incorporated.: Not incorporated. 8th Amendment8th Amendment: Incorporated with respect to the protection : Incorporated with respect to the protection

against "cruel and unusual punishments," but no specific against "cruel and unusual punishments," but no specific Supreme Court ruling on the incorporation of the "excessive Supreme Court ruling on the incorporation of the "excessive fines" and "excessive bail" protections.fines" and "excessive bail" protections.

Attacks from the New Attacks from the New Right RegimeRight Regime

In the 1980s, Attorney General Edwin Meese and In the 1980s, Attorney General Edwin Meese and others criticized incorporation as inconsistent with the others criticized incorporation as inconsistent with the intent of the Framers of the Constitution.intent of the Framers of the Constitution.

Justice Clarence Thomas has explained, “The text and Justice Clarence Thomas has explained, “The text and history of the Establishment Clause strongly suggest history of the Establishment Clause strongly suggest that it is a federalism provision intended to prevent that it is a federalism provision intended to prevent Congress from interfering with state establishments. Congress from interfering with state establishments. Thus . . . it makes little sense to incorporate the Thus . . . it makes little sense to incorporate the Establishment Clause.Establishment Clause.

Under this formulation, can the state of Washington Under this formulation, can the state of Washington establish a church? establish a church?

ConclusionConclusion The theory of selective incorporation, in The theory of selective incorporation, in

concept, emerged the victor; but, for all concept, emerged the victor; but, for all practical purposes and with only a few practical purposes and with only a few exceptions, total nationalization has exceptions, total nationalization has prevailed.prevailed.

As a result, present reading of the As a result, present reading of the Constitution now ensures that the basic Constitution now ensures that the basic civil liberties of citizens of the United civil liberties of citizens of the United States are uniformly protected against States are uniformly protected against infringement by any government entity—infringement by any government entity—federal, state, or local.federal, state, or local.