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Incorporation Doctrine

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A constitutional doctrine whereby selected provisions of the BILL OF RIGHTS are made applicable to the states through the DUE PROCESS CLAUSE of the FOURTEENTH AMENDMENT.

The doctrine of selective incorporation, or simply the incorporation doctrine, makes the first ten amendments to the Constitution—known as the Bill of Rights—binding on the states. Through incorporation, state governments largely are held to the same standards as the federal government with regard to many constitutional rights, including the FIRST AMENDMENT freedoms of speech, religion, and assembly, and the separation of church and state; the FOURTH AMENDMENT freedoms from unwarranted arrest and unreasonable SEARCHES AND SEIZURES; the FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION; and the SIXTH AMENDMENT right to a speedy, fair, and public trial. Some provisions of the Bill of Rights—including the requirement of indictment by a GRAND JURY (Sixth Amendment) and the right to a jury trial in civil cases (Seventh Amendment)—have not been applied to the states through the incorporation doctrine.

Until the early twentieth century, the Bill of Rights was interpreted as applying only to the federal government. In the 1833 case Barron ex rel. Tiernon v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243, 8 L. Ed. 672, the Supreme Court expressly limited application of the Bill of Rights to the federal government. By the mid-nineteenth century, this view was being challenged. For example, Republicans who were opposed to southern state laws that made it a crime to speak and publish against SLAVERY alleged that such laws violated First Amendment rights regarding FREEDOM OF SPEECH and FREEDOM OF THE PRESS.

For a brief time following the ratification of the Fourteenth Amendment in 1868, it appeared that the Supreme Court might use the PRIVILEGES AND IMMUNITIES CLAUSE of the Fourteenth Amendment to apply the Bill of Rights to the states. However, in the SLAUGHTER-HOUSE CASES, 83 U.S. (16 Wall.) 36, 21 L. Ed. 394 (1873), the first significant Supreme Court ruling on the Fourteenth Amendment, the Court handed down an extremely limiting interpretation of that clause. The Court held that the clause created a distinction between rights associated with state citizenship and rights associated with U.S., or federal, citizenship. It concluded that the Fourteenth Amendment prohibited states from passing laws abridging the rights of U.S. citizen-ship (which, it implied, were few in number) but had no authority over laws abridging the rights of state citizenship. The effect of this ruling was to put much state legislation beyond the review of the Supreme Court.

Instead of applying the Bill of Rights as a whole to the states, as it might have done through the Privileges and Immunities Clause, the Supreme Court has gradually applied selected elements of the first ten amendments to the states through the Due Process Clause of the Fourteenth Amendment. This process, known as selective incorporation, began in earnest in the 1920s. In GITLOW V. NEW YORK, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138 (1925), one of the earliest examples of the use of the incorporation doctrine, the Court held that the First Amendment protection of freedom of speech applied to the states through the Due Process Clause. By the late 1940s, many civil freedoms, including freedom of the press (NEAR V. MINNESOTA, 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 [1931]), had been incorporated into the Fourteenth Amendment, as had many of the rights that applied to defendants in criminal cases, including the right to representation by counsel in capital cases (POWELL V. ALABAMA, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 [1931]). In 1937, the Court decided that some of the privileges and immunities of the Bill of Rights were so fundamental that states were required to abide by them through the Due Process Clause (Palko v. Connecticut, 302 U.S. 319, 58 S. Ct. 149, 82 L. Ed. 288).

In 1947, the Court rejected an argument that the Fifth Amendment's right against SELF-INCRIMINATION applied to the states through the Fourteenth Amendment (Adamson v. People of the State of California, 332 U.S. 46, 67 S. Ct. 1672, 91 L. Ed. 2d 1903 [1947]). However, in one of the most famous dissents in history, Justice HUGO L. BLACK argued that the Fourteenth Amendment incorporated all aspects of the Bill of Rights and applied them to the states. Justice FELIX FRANKFURTER, who wrote a concurrence in Adamson, disagreed forcefully with Black, arguing that some rights guaranteed by the Fourteenth Amendment may overlap with the guarantees of the Bill of Rights, but are not based directly upon such rights. The Court was hesitant to apply the incorporation doctrine until 1962, when Frankfurter retired from the Court. Following his retirement, most provisions of the Bill of Rights were eventually incorporated to apply to the states.

FURTHER READINGS

Amar, Akhil Reed. 2002. "2000 Daniel J. Meador Lecture: Hugo Black and the Hall of Fame." Alabama Law Review 1221.

CROSS-REFERENCES

Due Process of Law.

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over 4 years ago

I was wondering when the 5th Amendment was incorporated? From everything I have read it is still not an incorporated amendment.

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over 2 years ago

Some provisions of the Bill of Rights—including the requirement of indictment by a GRAND JURY (Sixth Amendment)

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almost 4 years ago

The Second Amendment has been incorporated (see McDonald v. Chicago).

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over 4 years ago

Not all the Bill of Rights is incorporated! indictment by Grand jury, or civil cases heard by the jury, or the quartering of soldiers, or the right to keep and bear arms!

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5 months ago

was 11-27 Amendment incorporated?

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over 1 year ago

Sergio is a fatty

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over 4 years ago

the fith amendment along with the rest of the bill of right was incorporated soon after the declaration of constitution was drafted.



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over 1 year ago

Bill of rights is NOT originally part of the constitution. Constitutional convention- create constitution, made up of 7 articles. Federalists(not in favor) and anti-federalists (in favor) discuss/argue over the introduction of a Bill of Rights. These two groups were the very first POLITICAL PARTIES. Anti-federalists believed that without a Bill of Rights, individual rights would be taken away by the government. Federalists believed there was no way to list EVERY SINGLE RIGHT. They make a compromise and the Bill of rights in born.



Civil liberties- protections against the government.

-guarantees of the safety of persons, opinions, and property from the arbitrary acts of government, including freedom of speech and freedom of religion. ex. Freedom of religion, Freedom of speech/press , freedom to a fair trial



Civil rights- reserved for those positive acts that seek to make constitutional guarantees a reality for all people, E.G., prohibitions of discrimination.



Limited government- rights are relative, not absolute. You cannot do as you wish under law. Social contract philosophy (protection for life, liberty, property)- we enter into a govt. in order to secure rights. Before the govt. people had rights but no one enforced them and prevented others from taking away someone else's rights.

*when rights conflict- You have the right(s) to do certain things but when your rights conflict with someone else's, there is a problem.

ex. Oliver holmes- "The right to swing my fist, ends where the other man's nose begins." You can "swing your fist" but the moment it hits someone's face, you've successfully taken away their rights which is illegal. Another example is when you yell "fire!" in a crowded place. Its illegal because iit causes panic. Especially if there really is no fire at all. Supreme court rules that as illegal. alas, when you speed on a road over the speed limit, you are taking away one's or many peoples' rights. You are putting them into the danger zone, and rights conflict.



To whom are rights guaranteed? IN MOST INSTANCES, the Constitution WILL EXTEND the rights to all persons, including "aliens" - people who are from a different country and enter in the U.S. and become citizens legally. We have the right to travel. Certain restrictions can be placed upon aliens as far as traveling goes.



Federalism and Individual rights- Bill of Rights

When it was created, it was created to protect the individual from the Federal government.Federal govt. has more of an influence on state and local govts. The Bill of Rights protects us from the Federal Govt. Bill of rights was firstly intended for national govt.

Ex.= Supreme Court case of Barron v. Baltimore, court rules that the bill of Rights is not for state govts but for the federal govt. that means, amnedments are protection against the federal govt. for the individuals. After the Civil War, we witness the civil war amendments. One of which is the 14th amendment. With its passage, we get another Due process Clause (5th amendment) No state can deprive another from the protection of life, liberty and property without due process of law. Afterwards, cases start to go to the Supreme court; Cases that involve rights that are protected by the Bill of Rights at the National level but that states are not protecting. court hears, rules and when they rule in the favor of the plantiff, then the bill of rights becomes incorporated at the state level, which means the state must go ahead and guarantee the protection of the bill of rights as well.



the 2nd amendment, 3rd amendment, the grand jury part of the 5th amendment, the excessive fines and bail part of the 8th amendment has not been incorporated.



As far as the 2nd amendment goes, the right to bear arms, start a militia, it is guaranteed at the national level. That is why in every state, gun laws vary.



9th amendment- non-enumerated or unlisted rights

It talks about the listed rights. It does not mean we do not have other rights. "Just because we've listed SOME rights, important rights, does not mean there are not other rights out there that we have. It is taking that federalist argument that states "there is no way to list EVERY single right.." and it puts it into one amendment.



It allows for rights not specifically listed in the constitution to be protected. This is an example of Privacy. Its not located in the constitution, but we reserve this right anyways.

Griswold v. Connecticut- Birth control

Supreme court rules it as a privacy issue. (9th amendment, 3rd, 4th) Our privacy is upheld, reserved, guaranteed.