Talk:Incorporation of the Bill of Rights/Archive 1

Archive 1

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)

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)

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)

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))

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)

I renamed this section to Incorporation under Privileges or Immunities, which is more appropriate than just 'slaughterhouse'. I recommend getting rid of the section entirely since all incorporation is done using the due process clause, and privileges or immunities is pretty much dead since Slaughterhouse. But this has been a libertarian bugaboo and there was lots of interest after McDonald from Cato Institute, Eugene Volokh, Josh Blackman, etc, so maybe this is a good section for talking about that. Much better than the 2nd amendment section, anyway.Ttodorovv (talk) 00:41, 25 June 2010 (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)

Incorrect, Chicago B&Q (1897) definitely incorporated the 5th amendment's takings clause, and is widely considered first incorporation decision. added wikilinks to the case page.Ttodorovv (talk) 04:24, 25 June 2010 (UTC)

Amendment II

This part of the article needs to be rewritten in light of McDonald v. Chicago. A notation regarding that decision has been added, but much of the remainder of this part of the article is obsolete. SMP0328. (talk) 20:03, 2 July 2010 (UTC)

Most of it should actually just be removed to conform to the rest of the article. All of the other provisions that have been incorporated merely say so. Rreagan007 (talk) 23:36, 2 July 2010 (UTC)

Agreed and thanks. SMP0328. (talk) 02:58, 3 July 2010 (UTC)

Example of incorporation of the Right to Petition Clause

Proposal:

Regarding the "Specific Amendments" section of the article, under the First Amendment, I suggest that the ruling in Romer V. Evans (517 U.S. 620) appears to be a case of incorporation of The Right to petition the government for redress of grievances" to the states.

In the opinion, Justice Kennedy speaks of "the right to seek specific protection from the law" implying that the amendment to the Constitution of the State of Colorado (known as "Amendment 2") at question in Romer offends this enumerated right. Kennedy says: (emphasis is mine)

"Amendment 2 confounds this normal process of judicial review. It is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence. The absence of precedent for Amendment 2 is itself instructive; “[d]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.” Louisville Gas & Elec. Co. v. Coleman, 277 U. S. 32, 37–38 (1928).

It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution’s guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance."

- Kennedy, J. 517 U.S. 620 [633 at 10]

It seems to me that it is valid to reference this use of the Equal Protection Clause of the 14th as a case of incorporaton of the Petition for Redress clause of the 1st Amendment to the states.

Other thoughts on this?

Jeffmay (talk) 00:15, 11 September 2010 (UTC)

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'Entry into force' Section Deletion

I deleted the 'Entry into force' section for several reasons. One is that there were no sources given. The second is that it was written in an interrogative style, that did not seem to be fitting of Wikipedia. The third (and largest) is that (particularly noting the lack of sources) the content was incorrect: the idea that state laws passed before a right was incorporated or before the 14th Amendment and/or BIll of Rights were ratified are somehow then exempt from the contravened amendment is blatantly incorrect. The US Constitution supersedes all other law, regardless of when the law was passed. This is patently true, as amendments to the US Constitution have been made in response to preexisting laws that those amending wished to strike down (see the 13th Amendment, which was specifically written to ban any laws enshrining slavery).

The confusion on this instance may stem from the fact that the Supreme Court does not retroactively apply most of it's decisions (as articulated in Teague v. Lane, later partially overruled by Edwards v. Vannoy, with some exceptions e.g. Gideon v. Wainwright). The laws that are decided on, however, are still stricken or upheld based on their constitutionality: this only implies that those convicted may not seek an appeal to the Supreme Court based on a case decided after their own, not that the laws may stand because they entered into force prior to a given amendment of the Constitution. LonelyProgrammer (talk) 23:48, 11 July 2022 (UTC)

Scope of 9th Amendment

In the paragraph on Selective Incorporation appears a statement to the effect that Amendments 9 and 10 are patently connected to the powers of the state governments. Is this not completely false as regards the 9th? JBritnell (talk) 23:52, 5 November 2021 (UTC)

I believe you're correct: the reason the 9th has not explicitly been incorporated is that the Supreme Court rarely invokes it, not that it is only connected with state governments. I'll make an edit to that effect.

LonelyProgrammer (talk) 23:49, 11 July 2022 (UTC)

Criticisms

There needs to be a section that includes criticisms of the incorporation doctrine. — Preceding unsigned comment added by 2601:840:8681:9690:D574:12C1:C3C2:214E (talk) 18:01, 6 July 2022 (UTC)

If there were notable criticisms of the incorporation doctrine, it's likely they'd have shown up in the eighteen years this article has existed. Do you have some specific sources you believe are notable? Anastrophe (talk) 18:52, 6 July 2022 (UTC)

This is too glib of a response to a legitimate critique. According to this very article, there was a ~50 year gap between the ratification of the Fourteenth Amendment and the first court cases that began interpreting it as mandating incorporation. If you want to ask, "if incorporation was controversial, why hasn't anyone added a criticism section to the Wikipedia article in eighteen years?", I could likewise respond: if incorporation was uncontroversial, why did it take fifty years after the amendment that supposedly mandates it was ratified for the Supreme Court to discover it was in the constitution? Masebrock (talk) 03:25, 20 August 2022 (UTC)

Do you have some specific sources that are critical of the incorporation doctrine that you believe are notable? Anastrophe (talk) 03:36, 20 August 2022 (UTC)

Unincorporated rights

I see some problems in the treatment of the unincorporated rights, but I don't feel knowledgeable enough to address them myself.

The article currently says:

Provisions that the Supreme Court either has refused to incorporate, or whose possible incorporation have not yet been addressed, include the Fifth Amendment right to an indictment by a grand jury, and the Seventh Amendment right to a jury trial in civil lawsuits.

(On a minor point, I think the prohibition against re-examing facts tried by a jury should be mentioned as a separate third provision here; the section on the Seventh Amendment under "Specific amendments" does so.)

This sentence seems at least misleading to me. For all three provisions, the sections under "Specific amendments" cite Supreme Court opinions that predate the beginning of incorporation in 1925. (Even if incorporation is traced to Chicago, Burlington & Quincy Railroad Co. v. City of Chicago (1897), which the article says is the less common view, two of the three opinions predate even that.) But from that time there are Supreme Court opinions that reject the incorporation of the entire Bill of Rights, such as Barron v. Baltimore (1833); and even Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211 (1916), which is cited for the non-incorporation of the Seventh Amendment, arrives at that result as a special case of the non-incorporation of the entire Bill of Rights (for which it cites lots of precedents).

The formulation "the Supreme Court either has refused to incorporate, or whose possible incorporation have not yet been addressed" suggests (to my mind) that the Supreme Court refused to incorporate some of these provisions when incorporation was already a thing, i.e. that their possible incorporation was addressed after it became possible; but that doesn't seem to be the case. In this sense, the incorporation of all three provisions has "not yet been addressed". So I think this sentence should be rephrased, and the sections under "Specific amendments" should explain that the opinions cited predate incorporation and don't imply that incorporation of these provisions has been specifically rejected.

I'm also wondering whether it's correct that in the section on the Seventh Amendment the subsection "Right to jury trial in civil cases" mentions two cases and the subsection "Re-Examination Clause" only mentions one of them. The one it doesn't mention says "The Seventh Amendment to the Constitution, touching the right of trial by jury, applies only to the courts of the United States." That sounds to me as if the entire amendment doesn't apply, both because "touching the right of trial by jury" is just a description and doesn't imply the restriction "insofar as it touches the right of trial by jury", and also because the proscription against re-examination makes little sense without the right of trial by jury (why should a court not be allowed to re-examine evidence when you're not entitled to have the evidence examined by a jury in the first place?). Joriki (talk) 13:42, 8 August 2023 (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)

In the meantime, Apodaca v. Oregon has been overruled by Ramos v. Louisiana, and this is noted under "Right to trial by impartial jury". I wonder whether there should be a separate heading for this again – on the one hand, it's a right in its own right; on the other hand, it's not explicitly mentioned in the amendment. At Sixth Amendment to the United States Constitution, this is also treated in the section Impartial jury. Joriki (talk) 14:10, 8 August 2023 (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)

That's an interesting idea, but two reasons speak against it:

• This is not an individual right, and it's hard to see how either the Due Process Clause or the Privileges and Immunities Clause could be argued to apply this amendment to the states, as they refer to persons and citizens, respectively.
• One of the few provisions that haven't been incorporated is the Vicinage Clause of the Sixth Amendment. The Supreme Court hasn't addressed this issue yet, but three circuit courts have refused to apply the clause to the states. In one case, Caudill v. Scott, the court argued that the term "district" refers to federal districts and doesn't apply to the states. A similar argument could be made for the Twenty-seventh Amendment, especially as not all states have "Representatives" (some have Assemblymembers, some have Delegates; see State legislature (United States)).

Joriki (talk) 14:31, 8 August 2023 (UTC)