Incorporation Doctrine

In the debates and public discussions that led to the framing and ratification of the Fourteenth Amendment, proponents such as John Bingham, the principal framer of the amendment, proclaimed that its intent was to extend the jurisdiction of the federal courts over all of the rights recognized in the U.S. Constitution, including all those in the Bill of Rights, for cases between a citizen and his state. The Supreme Court in Barron v. Baltimore, 32 U.S. 243 (1833), had held that while state courts were indeed bound to protect the rights recognized in the Bill of Rights, the Bill of Rights did not amend the omission of cases between a citizen and his state from the list of jurisdictions in Art. III, making them federal questions that could be adjudicated in federal courts. The Fourteenth Amendment was intended in part, its proponents claimed, to correct the precedent of Barron.

Opponents of this interpretation argue that the Fourteenth Amendment was primarily designed to protect the Citizenship rights of blacks and ban Race Discrimination, but not to apply the Bill of Rights to the states. Supporters of this notion argued that black freedom could only be accomplished if the civil liberties of blacks and their white southern allies were protected. They further argued that without due-process protections, such as those found in the Bill of Rights, the former slaves and white southern Unionists would have been at the mercy of their former masters. Thus, the claim was made that the framers of the Fourteenth Amendment, especially John Bingham, understood they were protecting black freedom and the civil liberties of all people in the South.

Such extension created a logical problem, however. If rights, or more precisely, immunities against official action, were all the field of public action not restricted by the delegation of a power to public officials, and every declaration of a right a restriction on delegated powers, then federal immunities would include a vast array, including many that were abridged by the delegations of powers to state officials by state constitutions. If states could abridge any federal privilege or immunity by adopting state constitutional delegations of powers, then the Fourteenth Amendment could be rendered void.

If, on the other hand, there were federal privileges and immunities beyond the reach of state constitutions to abridge, then the Bill of Rights, especially the Ninth and Tenth Amendments, was not sufficiently specific as to which of those privileges and immunities might be of a more fundamental character. The states had adopted broad ‘‘police powers’’ to legislate for the ‘‘health, safety, order, and morals’’ of the people, and the language of such a broad delegation left it to the discretion of the state legislature to abridge almost any federal privilege or immunity.

Beginning with the Slaughterhouse Cases of 1872, which found only a very limited set of privileges and immunities inherent in federal Citizenship, the U.S. Supreme Court began to reach decisions on such rights that narrowly considered only particular rights, and not the full array of them, and based their decisions not on the privileges and immunities clause of the Fourteenth Amendment, but on its due process clause. It has also expanded upon a distinction, first suggested in Dred Scott v. Sandford, 60 U.S. 393 (1856), between substantive and procedural due process. This raised the question of whether the states were bound to the same standards of due process as the federal government was; indeed, the Court did begin to allow the states to deviate from federal standards of due process.

In Hurtado v. California, 110 U.S. 516 (1884), the Court refused to protect the right to indict by a grand jury in California. In Twining v. New Jersey, 211 U.S. 78 (1908), the Court declined to protect the right against self-incrimination. In Palko v. Connecticut, 302 U.S. 319 (1937), it was double jeopardy. In Adamson v. California, 332 U.S. 46 (1947), it was the right not to use a defendant’s refusal to testify against himself against him. In Williams v. Florida, 399 U.S. 78 (1970), it was the right to a jury of twelve. In Apodaca v. Oregon, 406 U.S. 404 (1972), it was the right to a unanimous jury.

Positive incorporation of rights can be traced back to Chicago, Burlington & Quincy Railway Co. v. Chicago, 166 U.S. 226 (1897), in which the Supreme Court appeared to require some form of just compensation for property appropriated by state or local authorities. More clearly, in Gitlow v. New York, 268 U.S. 652 (1925), the Court expressly held that states were bound to observe First Amendment free-speech protections. Since then, selective incorporation has been made in: Near v. Minnesota, 283 U.S. 697 (1931) (freedom of the press)

Powell v. Alabama, 287 U.S. 45 (1932) (assistance of counsel in capital criminal cases) DeJonge v. Oregon, 299 U.S. 353 (1937) (freedom of assembly)

Cantwell v. Connecticut, 310 U.S. 296 (1940) (free exercise of religion)

Everson v. Board of Education, 330 U.S. 1 (1947) (establishment of religion)

In re Oliver, 233 U.S. 257 (1948) (public trial)

Wolf v. Colorado, 338 U.S. 25 (1949) (right against unreasonable search and seizure) NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958) (freedom of association)

Mapp v. Ohio, 367 U.S. 643 (1961) (exclusionary rule)

Robinson v. California, 370 U.S. 660 (1962) (cruel and unusual punishment)

Gideon v. Wainwright, 372 U.S. 335 (1963) (assistance of counsel in felony cases)

Malloy v. Hogan, 378 U.S. 1 (1964) (right against self-incrimination)

Pointer v. Texas, 380 U.S. 400 (1965) (right to confront adverse witnesses)

Klopfer v. North Carolina, 386 U.S. 213 (1967) (right to speedy trial)

Washington v. Texas, 388 U.S. 14 (1967) (right to compulsory process to obtain witness testimony)

Duncan v. Lousiana, 391 U.S. 145 (1968) (right to trial by jury in cases with significant criminal penalties)

Benton v. Maryland, 395 U.S. 784 (1969) (right against double jeopardy)

Rabe v. Washington (1972) (right to notice of accusation)

Argersinger v. Hamlin (1972) (right to counsel in imprisonable misdemeanor cases)

Burch v. Louisiana (1979) (right to unanimous jury verdict if jury size is only six)

The principal champion for total incorporation of all of at least the enumerated rights recognized in the Bill of Rights and elsewhere in the U.S. Constitution was Justice Hugo Black in his dissent in Adamson. Opposing this is the position of Justice Felix Frankfurter, who argued in Rochin v. California, 342 U.S. 165 (1952), that the federal courts should apply only those provisions of the Bill of Rights that, if abridged, would ‘‘shock the conscience,’’ which would seem to make incorporation more a matter of emotion than logic. However, the Frankfurter doctrine has prevailed for the time being, leaving several rights, such as the protections of the Second and Eighth Amendments, unresolved. It also fails to address Ninth Amendment ‘‘unenumerated’’ rights that may be considered fundamental, such as the right to a presumption of nonauthority and to prosecute a public right privately.

JON ROLAND

References and Further Reading

• Aynes, Richard, On Misreading John Bingham and the Fourteenth Amendment, Yale Law Journal 103 (1993): 57.
• Curtis, Michael. ‘‘No State Shall Abridge’’: The Fourteenth Amendment and the Bill of Rights. Durham, NC: Duke University Press, 1986.
• Lieberman, J. A Practical Companion to the Constitution. Berkeley: University of California Press, 1999.
• Roland, Jon. Intent of the Fourteenth Amendment was to Protect All Rights. Includes quotes from the framers ofthe Fourteenth Amendment and the arguments of Justice Hugo Black for full incorporation. https://www.constitution.org/col/intent_14th.htm
• Symposium on John Bingham and the Meaning of the Fourteenth Amendment, Akron Law Review 36 (2003): 589–717. Amendment and the Bill of Rights. Durham, NC: Duke University Press, 1986.