Posted on 05/21/2002 11:54:40 AM PDT by tpaine
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.
Cases
The Slaughter-House Cases (1873)
Adamson vs California (1947)
Duncan vs. Louisiana (1968)
The Fourteenth Amendment (Section 1):
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.
The Bill of Rights
Incorporated or Not Incorporated?
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.
"My study of the historical events that culminated in the Fourteenth Amendment, and the expressions of those who sponsored and favored, as well as those who opposed its submission and passage, persuades me that one of the chief objects that the provisions of the Amendment's first section, separately, and as a whole, were intended to accomplish was to make the Bill of Rights, applicable to the states.
With full knowledge of the import of the Barron decision, the framers and backers of the Fourteenth Amendment proclaimed its purpose to be to overturn the constitutional rule that case had announced.
This historical purpose has never received full consideration or exposition in any opinion of this Court interpreting the Amendment."
And that still leaves me with my question: why, then, didn't these framers simply come right out and say it in the amendment itself? It wouldn't have been very difficult for them to do. Why all the beating around the bush?
I would bet your problem with the 14th is what it says, -- more than how its said. - True?
Actually, I agree, because I don't believe that the 14th amendment incorporates the BOR. It's only if one does believe that, that it would very much appear that they were beating around the bush. If the framers intended for that to be the case, they could have very easily said so.
I would bet your problem with the 14th is what it says, -- more than how its said. - True?
I'll admit, if I had my druthers, it wouldn't be a part of the Constitution. It's a rather prolific source of mischief for the federal judiciary. But my biggest problem isn't with the actual provisions of the amendment, but with the way it gets glaringly misapplied.
But in any case, I'd like to hear your (or Judge Black's) explanation of why its authors didn't feel the need to say what they meant, if they truly meant to incorporate the Bill of Rights.
Zealots hate facts.
- If you don't believe Black, read the ratification debates themselves. They're on the web.
No support there. Cheap bluff.
"We have held from the beginning and uniformly that the Due Process Clause of the Fourteenth Amendment does not apply to the States any of the provisions of the first eight amendments as such. The relevant historical materials have been canvassed by this Court and by legal scholars. These materials demonstrate conclusively that Congress and the members of the legislatures of the ratifying States did not contemplate that the Fourteenth Amendment was a short-hand incorporation of the first eight amendments making them applicable as explicit restrictions upon the States." -- U.S. Supreme Court BARTKUS v. ILLINOIS, 359 U.S. 121 (1959)
"My study of the historical events that culminated in the Fourteenth Amendment, and the expressions of those who sponsored and favored, as well as those who opposed its submission and passage, persuades me that one of the chief objects that the provisions of the Amendment's first section, separately, and as a whole, were intended to accomplish was to make the Bill of Rights, applicable to the states.
With full knowledge of the import of the Barron decision, the framers and backers of the Fourteenth Amendment proclaimed its purpose to be to overturn the constitutional rule that case had announced. This historical purpose has never received full consideration or exposition in any opinion of this Court interpreting the Amendment."
It might seem inappropriate to you that people have interpreted the due process clause in somewhat different ways, but how are any of those different interpretations less defensible than an interpretation which would hold that it added nothing to the Constitution?
Those who would limit our rights insist that we must list them.
- The opposite is true. - Laws list limits. Freedom is limitless, and need not be listed.
"We have held from the beginning and uniformly that the Due Process Clause of the Fourteenth Amendment does not apply to the States any of the provisions of the first eight amendments as such. The relevant historical materials have been canvassed by this Court and by legal scholars. These materials demonstrate conclusively that Congress and the members of the legislatures of the ratifying States did not contemplate that the Fourteenth Amendment was a short-hand incorporation of the first eight amendments making them applicable as explicit restrictions upon the States." -- U.S. Supreme Court BARTKUS v. ILLINOIS, 359 U.S. 121 (1959)
I answered that when I said that the BOR wasn't applied to the states by the 14th. Last time I checked, the 9th amendment was part of the BOR.
Those who would limit our rights insist that we must list them. - The opposite is true. - Laws list limits. Freedom is limitless, and need not be listed.
Philosophical argument. Not a legal one.
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