The Incorporation Debate

The Issue: Does the Fourteenth Amendment "Incorporate" the Protections of the Bill of Rights and Made Them Enforceable Against the States?
Introduction

The debate over whether the Fourteenth Amendment makes appicable against the states all of the protections of the Bill of Rights is one of the most important and longest-lasting debates involving interpretation of the U. S. Constitution.

The Supreme Court's first interpretation of the scope of the Fourteenth Amendment, adopted in 1868, was rendered in The Slaughterhouse Cases just five years later. By a 5 to 4 vote the Court in that case narrowly interpreted the Privileges and Immunities Clause, thought to be the most likely basis for enforcing individual rights against states. In subsequent cases, attention focused on the Due Process Clause.
Beginning in the early twentieth century the Court began to selectively incorporate some of the specific provisions of the Bill of Rights while rejecting the incorporation of others. The Court's test for choosing which provisions--along with all the accompanying baggage of decisions interpreting the federal rights--were incorporated changed over time.

The "modern view," as reflected in cases such as Duncan vs Louisiana (1968) is that provisions of the Bill of Rights "fundamental to the American scheme of justice" (such as the right to trial by jury in a serious criminal case) were made applicable to the states by the Due Process Clause of the Fourteenth Amendment whereas other provisions (such as the right to a jury trial in a civil case involving more than $20) were not made applicable.

Note that there are several possible positions that could be taken with respect to the incorporation debate.

First, one could argue that the Fourteenth Amendment (either through the P & I Clause or the Due Process Clause) made the specific provisions of the Bill of Rights enforceable against the states and no more. This was the view argued for by Justice Black.

Second, one could argue that the provisions of the Bill of Rights are essentially irrelevant to interpretation of the Fourteenth Amendment, and that violations of the Due Process Clause are to be determined by a natural-law-like tests such as "Does the state's action shock the conscience?" or "Is the state's action inconsistent with our concept of ordered liberty"? This is the "No Incorporation" Theory advanced by Justice Frankfurter, among others.

Third, one could take a position such as Justice White did in Duncan that the Fourteenth Amendment incorporates certain fundamental provisions, but not other non-fundamental provisions. This view is often called the "Selective Incorporation" Theory.

Finally, one could adopt either a "Selective Incorporation Plus" view or a "Total Incorporation Plus" (see Justice Murphy's view in Adamson, for example) view. These views hold that in addition to incorporating some or all of the provisions of the Bill of Rights, the Fourteenth Amendment also prohibits certain other fundamental rights from being abridged by the states.

The Slaughter-House Cases (1873)
Adamson vs California (1947)
Duncan vs. Louisiana (1968)

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

1st Amendment: Fully incorporated.
2nd Amendment: No Supreme Court decision on incorporation since 1876 (when it was rejected).
3rd Amendment: No Supreme Court decision; 2nd Circuit found to be incorporated.
4th Amendment: Fully incorporated.
5th Amendment: Incorporated except for clause guaranteeing criminal prosecution only on a grand jury indictment.
6th Amendment: Fully incorporated.
7th Amendment: Not incorporated.
8th Amendment: Fully incorporated.

- So what? - ALL these developments have been recent 'new deal' or even 'great society' events. -- The historical facts remain, - the 14th was not intended as a federal power grab. -- And it need not be allowed to be one.

I don't think that Section 2 of the Thirteenth Amendment, Section 5 of the Fourteenth Amendment or Section 2 of the Fifteenth Amendment are any more of a "federal power grab" than the commerce clause. Those sections just contain some additional express delegations of power to Congress. And, from time to time, Congress has used those powers quite effectively.

According to your theory, the privileges-and-immunities clause refers to the Bill of Rights.

-- Nope. The whole of Section 1 applies to the BOR's, as the historical record proves. It is not just 'my' theory.

So to quote from your quote from Bingham: "Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States ...." He's making reference to a particular clause, not the entire Section 1.

And by the way, it's interesting to note that your authority here only refers to the first eight amendments, so I guess that kind of shoots down the argument you made in #3.

Someone has hijacked your nick and is posting opinions on the 14'th amendment. ;)

I'd take issue with that definition of due process as being a "general" description of it. All it really means is that, whatever the formal process is for legal disputes in society, you have the ability to avail yourself of it. And what those procedures are exactly will vary from society to society. Here we've set up a formal adversarial process, and included things like the right to examine witnesses and evidence presented against you, the right to present evidence and witnesses of your own, and so forth as being a part of the process. But this doesn't apply to other societies with other formal or informal procedures. In a society where guilt or innocence is determined by having the accused walk on hot coals, "due process" just means that you have the right to walk on hot coals to prove your innocence.

In a general sense, "due process" means that, whatever the formal procedure is, it is followed in your case, and you have the ability to avail yourself of it, instead of society just dealing with every case on an ad hoc basis. And if there is no set procedure, there is no real due process in any meaningful sense...

The historical facts remain, - the 14th was not intended as a federal power grab." --

I don't think of any provision in the Constitution in terms of being a "federal power grab," but these Civil War amendments did provide the Congress with some very substantial new powers.

Consider, for example, the Fifteenth Amendment. Section 1 of that amendment prohibits any state from discriminating against people "on account of race, color, or previous condition of servitude." Section 2 empowers Congress to enforce the amendment by appropriate legislation. In Lassiter v. Northampton County Board of Elections (1959), the Supreme Court upheld state literacy tests when it was contended that they were unconstitutional pursuant to Section 1 of the Fifteenth Amendment. Thereafter, Congress determined in the course of legislative hearings that some states were utilizing literacy tests for the purpose of depriving blacks of the right to vote. Based upon its findings, Congress enacted the Voting Rights Act of 1965 which barred certain states from using literacy tests as a qualification for voting. The Supreme Court, in Katzenbach v. South Carolina (1966) held that, pursuant to Section 5, Congress was empowered to ban the use of literacy tests in states where Congress believed the tests were being used to evade the requirements of the Fifteenth Amendment.

Any way you look at it, that's Congressional power.

OK, so would you then agree that a general meaning of due process, which can be applied throughout all the ages, is a process whereby the defendant has an adequate means to answer the charges that have been brought against him, and to have the facts be presented fairly, and to have his verdict be consistent with the facts that have been presented, and with the meaning of the law that he's being tried under?

I tend to agree with Justice Brennan's assessment that the Fourteenth Amendment is best viewed as "a broadly worded injunction capable of being interpreted by future generations in accordance with the vision and needs of those generations." Oregon v. Mitchell (1970) 400 U.S. 112. I'm not at all afraid that future generations might conclude that "due process of law" requires for their time and circumstances somewhat different practices and procedures than ours. They should. The unifying priniciple is a respect for the individual's right to fundamentally fair procedures and a protection against arbitrary conduct on the part of the government.

Someone has hijacked your nick and is posting opinions on the 14'th amendment. ;)

Really? It's been me the whole time here. Maybe you're thinking of someone else. Maybe someone with some loony religious notions about pain or something. You gotta watch out for those types.

And if there is no set procedure, there is no real due process in any meaningful sense...

And that's why I'm just a little bit hesitant to sign on to your description of due process. It leaves so many avenues for playing fast and loose with the rules. Any government can then say, "Yeah, but that's our rule!" I'd have to agree with what Ned said in #46. There's an entire paragraph from that post which I think sums it up pretty well, which I'll post here, hoping he doesn't mind:

The problem that I have with this interpretation is that I don't think that people went to all of the trouble of adopting the Fourteenth Amendment just to make sure that state judges complied with the directions of state legislatures. The Fourteenth Amendment provides that "nor shall any State deprive any person of life, liberty, or property, without due process of law." I believe that state legislatures were intended to fall within the scope of the term "State" and that the due process clause obligates the State (including the state legislature) to comply with some minimum standards of fairness when disposing of a person's life, liberty or property. I do not believe, for example, that a state can, consistent with the due process clause, execute or imprison people without trials even if the state legislature enacts statutes providing for executions and imprisonment without trial. I firmly believe that the due process clause of the Fourteenth Amendment was adopted as a limitation on state laws and practices with the understanding that states would thereafter be held to some national standards of "due process of law." The real debate concerns just what those national minimum due process standards should be.

Any way you look at it, that's Congressional power.

And I'd have to say that I disagree completely that the Voting Rights Act is constitutional. More broadly, the power to enforce a law does not entail a power to add new meaning to the law. It means only the power to take appropriate action against violators. Either the 15th amendment prohibits literacy tests or it doesn't. If it does, then Congress would have the power to decide what to do with state officials that impose them. But of course, it doesn't mean that. The 15th amendment is one of the clearest provisions in the Constitution, scarcely requiring any "interpretation" at all. I mean, talk about screwin' up a free lunch.

I think that's not necessarily contradictory to what I said. All I'm pointing out is that what the procedure is will vary from place to place, and having a right to due process just means that, whatever it is, you have a right to it. Here, due process includes, along with the evidence and witnesses I mentioned before, a jury trial if you wish, a speedy trial if you wish, a procedure to appeal an adverse finding if you wish. And so forth.

But what "due process" is isn't universal among all societies because the procedure isn't the same everywhere. Here, if those elements guaranteed to you by the Constitution are omitted - the judge declares that they'll just skip the trial and throw a rope over a tree branch for you - then in the context of our procedures, your right to due process has been violated because the formal procedure has not been followed. Somewhere else, if the method is to have you walk on hot coals, and you don't get to walk on hot coals, then you haven't received due process under that system.

In it's broadest, most general sense, due process implies that there exists some formal procedure for resolving legal disputes (but does not say what that procedure is or should be in a universal way), and that this formal procedure is followed in your particular case. It's procedure versus ad hockery - if they ignore the procedure, whatever it is, then you have not received due process. If it is followed, then you have. But like I said, it only implies that a formal method exists, not what that method should be. Here we have an elaborate and formal procedure, with many elements and layers. Elsewhere, the procedure may not be so formal or so complex. Here, "due process" has a specific meaning that does not apply elsewhere - in many countries, you can forget that idea of not being forced to testify against yourself. That's not a part of the process there, so being forced into testifying against yourself in some other country is not a violation of due process by their standards.

"Due process" just means that the procedure was followed, whatever it is. The fact that the procedure varies so radically from place to place practically guarantees that "due process" doesn't have a universal meaning beyond what I've laid out - that is, until we have a universal method of dispute resolution, anyway.

According to your theory, the privileges-and-immunities clause refers to the Bill of Rights.

-- Nope. The whole of Section 1 applies to the BOR's, as the historical record proves. It is not just 'my' theory.

So to quote from your quote from Bingham: "Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States ...." He's making reference to a particular clause, not the entire Section 1.

Of course he is. So what? Notice his qualification, in bold. -- The balance of our rights are not defined, -- they are NOT enumerated, - and are thus covered by the 9th & 10th.

And by the way, it's interesting to note that your authority here only refers to the first eight amendments, so I guess that kind of shoots down the argument you made in #3.

See above.

Ya know, your nitpicking is really getting stretched again. - What IS your main point? Can you formulate one, or are you just trying to pettifog the issues?

These amendments were not drafted by amateurs. They were drafted by professional politicians who understood how how courts and legislatures actually work. They felt that the Fifteenth Amendment was required because they really wanted black citizens to be able to vote. And they knew that legislators in some of the states would do all that they could to prevent the enfranchisement of blacks, no matter what the Fifteenth Amendment might say.

A state doesn't have to expressly prohibit blacks from voting in order to prevent or discourage them from voting. There's lots of other ways that are quite effective. A state might decide to just not have any polling places within black communities and require that blacks who wish to vote travel to neighborboods that are inconvenient or unsafe for them to be. See how many ways you can come up with to discourage blacks from voting without enacting an express prohibition of black voting.

Because that is exactly what happened. As the Court pointed out in South Carolina v. Katzenbach (1966):

"Meanwhile, beginning in 1890, the States of Alabama, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Virginia enacted tests still in use which were specifically designed to prevent Negroes from voting. Typically, they made the ability to read and write a registration qualification and also required completion of a registration form. These laws were based on the fact that as of 1890 in each of the named States, more than two-thirds fo the adult Negroes were illiterate while less than one-quarter of the adult whites were unable to read or write. At the same time, alternate tests were prescribed in all of the named States to assure that white illiterates would not be deprived of the franchise. These included grandfather clauses, property qualifications, 'good character' tests, and the requirement that registrants 'understand' or 'interpret' certain matter."

The professionals who drafted the Fifteenth Amendment knew that some of the states would attempt to evade the Fifteenth Amendment even if they could not foresee precisely how the evasions might be designed. And that's why we have section 2, which authorizes Congress to enact "appropriate" legislation to enforce the amendment.

Of course he is. So what? Notice his qualification, in bold. -- The balance of our rights are not defined, -- they are NOT enumerated, - and are thus covered by the 9th & 10th.

You're missing the point. You had said that the entire Section 1 was what incorporated the BOR, whereas your source is saying that it's only the P&I clause that does so. Surprised you didn't see that.

What IS your main point? Can you formulate one, or are you just trying to pettifog the issues?

Why, my main point is that the 14th amendment doesn't incorporate the BOR. Surprised you didn't see that either.

Of course he is. So what? Notice his qualification, in bold. -- The balance of our rights are not defined, -- they are NOT enumerated, - and are thus covered by the 9th & 10th.

You're missing the point. You had said that the entire Section 1 was what incorporated the BOR, whereas your source is saying that it's only the P&I clause that does so. Surprised you didn't see that.

Not surprising at all, seeing I've never said that. I view the 14th as binding on the states without 'incorporation', which, imo, - is just the legal/political oppositions way of skirting the 14ths clear intent, as written.

-----------------------------

What IS your main point? Can you formulate one, or are you just trying to pettifog the issues?

Why, my main point is that the 14th amendment doesn't incorporate the BOR. Surprised you didn't see that either.

First time you've actually claimed that, I believe. -- What then, is the 14ths purpose, if it does NOT apply the BOR's to the states?

And why do you oppose an amendment that protects your own individual rights?

This conversation is beginning to have a hauntingly familiar ring to it, for some reason. But regardless of whether or not there's a "universal" (shudder) definition of due process, there certainly is a national definition, which is all the Constitution is concerned with (mercifully for me). If some state says that due process consists of having a police officer say, "OK, punk, what's the average rainfall of the Amazon basin?... Time's up! Get a rope," and even if that's been standard operating procedure for quite some time in that state, I think we would still have to conclude that their process could use an extra axiom or two.

This conversation is beginning to have a hauntingly familiar ring to it, for some reason.

It's okay - we seem to be on the same basic wavelength tonight ;)

We have an idea of due process here that applies to us as Americans, and that is laid out by the Constitution. It's not everyone's idea of due process - due process doesn't mean much in Cuba, for example. They'll have a real nice trial before they shoot you, but that trial is basically a formality, and not a true fact-finding exercise the way we do it here.

So, then the question all along has been WRT to the 14'th Amendment, and what due process means to the states in light of it. And I have to say, I understand the arguments against incorporation, and I even find them sort of persuasive. But I have to come back to the consequences (yeah, yeah) of total non-incorporation. Of what practical value is a Bill of Rights that the states can violate with impunity? Sure, the feds can't violate it, but when that Arizona trooper starts quizzing you about geography while knotting a rope, that ain't gonna be much comfort.

And practically speaking, historically speaking, there have been plenty of cases of abuses of due process by state and local authorities - hop in your time machine and dial it back 40 years, and then ask the black residents of rural Mississippi how that procedural due process thing is working out for them. The feds are remote and far away, for the most part. It's those state and local guys that I see on a daily basis, and I'd sort of like some guarantee that I'm not going to be subject to the personal whims of Sheriff Buford T. Justice.

Now, you want an a**hole's reading of the 14'th amendment? I'm wrapped up in argument with a hard-core lefty who insists that the 14'th means that if any one crop is subsidized by the government, it would be discrimination not to subsidize all legal crops. How do you like that reading of the 14'th? ;)

Here's an interesting take on 'due process', for you two students of history:

In its discussion of the scope of "liberty" protected by the Due Process Clause of the Fourteenth Amendment the Court stated:

Neither the Bill of Rights nor the specific practices of the States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U.S. Const., Amend. 9.
As the second Justice Harlan recognized:

"[T]he full scope of the liberty guaranteed by the Due Process Clause `cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This `liberty´ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on.
It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment."

Poe v. Ullman, supra, 367 U.S. at 543, 81 S.Ct., at 1777

Well, that's plenty interesting, but they don't explain how "process" would have anything to do with the substance of a law. Maybe you can fill in the blanks on that one. Anyway, to answer your previous questions:

What then, is the 14ths purpose, if it does NOT apply the BOR's to the states?

I went into detail about that in #28, explaining the meaning of privileges and immunities, due process of law, and equal protection of the laws. If you don't want to go through all those details, then I gave the short version at the bottom of the post: "The common thread running through all three is that they are simply prohibitions against the worst types of potential abuses of state power, not a blanket protection of unspecified natural rights. It's the job of the peoples of those states to make sure their own constitutions contain the appropriate protections, and ultimately, to make sure that their governments respect their rights."

And why do you oppose an amendment that protects your own individual rights?

Actually, it's an amendment that's billed as a protection of individual rights. It's unnecessary because my own state constitution already contains the appropriate protections; and it actually makes matters worse, because it's rarely used in a manner that protects individual rights, and in many cases doesn't even pretend to (often, it's more about "group rights"). And so, whether or not it was intended as such, it's been the impetus for an unprecedented power grab by the feds, which has consistently eroded freedom over time.

The professionals who drafted the Fifteenth Amendment knew that some of the states would attempt to evade the Fifteenth Amendment even if they could not foresee precisely how the evasions might be designed. And that's why we have section 2, which authorizes Congress to enact "appropriate" legislation to enforce the amendment.

But that's just not what enforcement means. It only means establishing the procedures to see to it that the subjects of the law comply with the law itself, not with the "intent" behind the law. I mean, I've always considered it an elemental principle of law - one that doesn't even need to be stated - that if the law says "Don't do X," then you have a right not to be bothered by anyone if you refrain from doing X. You shouldn't have to constantly be asking yourself, "OK, now why don't they want me doing that? Am I truly fulfilling its purpose?" Say they outlaw working for wages on Sundays, and then you decide to do volunteer work on that day, devoting nearly the whole day helping out at the local hospital or library or whatever, and then the authorities come up to you and start chewing you out, saying you're working way too much, and you say, "But it's volunteer work, the law only prohibits wage work," and they say, "Yeah, but the idea was to get you to work less, not more!" you would be entirely justified in saying, "BUT THAT'S NOT WHAT THE LAW SAYS!!!"

The 15th amendment does not say that states must have "reasonable" voting qualifications, and it does not say that Congress shall have the power to make sure that everyone gets a fair shake at being able to vote; it specifically says that states shall not use race as a criterion in awarding the franchise, and it gives Congress the power to make sure that they don't. It really couldn't be any clearer than that.

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