By the end of this book, you will be able to do the following:

1. You will be able to define incorporation, as it applies to the Bill of Rights.
2. You will be able to define and identify the various legal protections written in the Bill of Rights.
3. You will be able to identify and explain which of the Bill of Rights have been incorporated and in what capacity.

Part 1: Background Information

In part 1 of this book, you will be provided with the necessary background information that is needed in order to understand the incorporation doctrine. You will learn about the mission of the Supreme Court, the current members serving on the court, the definition of a landmark Supreme Court case, the bill of rights, and a basic definition of the incorporation doctrine.

What is the Supreme Court?

According to www.supremecourt.gov, the mission of the Supreme Court is as follows:

“The Supreme Court is the highest tribunal in the nation for all cases and controversies arising under the Constitution or the laws of the United States. The Court stands as the final arbiter of the law and guardian of constitutional liberties.”

This means that the Supreme Court makes very important decisions that affect our legal system and society at large.

Who are the current members serving on the court?

Chief Justice of the United States: 

JOHN G. ROBERTS, JR.

Associate Justices:

ANTONIN SCALIA

ANTHONY M. KENNEDY

CLARENCE THOMAS

RUTH BADER GINSBURG

STEPHEN G. BREYER

SAMUEL A. ALITO, JR.

SONIA SOTOMAYOR

ELENA KAGAN

What is a landmark Supreme Court case?

A landmark Supreme Court decision is significant in that the outcome of this type of case establishes a significant new legal principle or changes the interpretation of existing law. These decisions alter the way that courts think about a certain legal issue, and the legal opinion established in one of these cases can have an impact on future cases.

For a list and explanation of 25 of the most famous landmark Supreme Court cases, click here.

What are the Bill of Rights?

The Bill of Rights comprises the first ten Amendments to the United States Constitution. These ten Amendments provide many personal freedoms to the citizens of the United States, and they place restrictions on the Federal Government. The Bill of Rights was adopted as a means of compromise during the ratification of the original Constitution in order to persuade the Antifederalists to advocate for its ratification by the states.

To learn more about the Bill of Rights, click here.

On the following pages, you can read the first ten Amendments in their original form.

First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Notice the first word is Congress; this is demonstrative of the fact that the Bill of Rights was a document that was originally intended to limit the powers of the Federal government. This means that at the time of adoption, the state government could limit the freedoms and protections that are listed in the Bill of Rights.  

Second Amendment:

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Consider: To what extent should this freedom be maintained? Should average citizens be allowed to carry automatic machine guns? Also, keep in mind, at the time of adoption it was the Federal Government who could not infringe upon the people’s right to keep and bear arms. The States could decide for themselves to what extent the people were able to possess firearms. 

Third Amendment:

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This is one of the Amendments that establish the foundation for a right to privacy. To learn more about the right to privacy, click here. 

Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

This amendment provides many rights that relate to both criminal and civil legal proceedings. For more information on the terminology and provisions of this Amendment, click here.

Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Seventh Amendment:

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Eighth Amendment:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

What is considered cruel and unusual punishment? Click here.

Ninth Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

This text of this Amendment has sparked much debate as to the full extent of its meaning. Click here to read what the experts have to say. 

Tenth Amendment:

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.

What is the incorporation doctrine?

According to www.law.cornell.edu, the incorporation doctrine is: “a constitutional doctrine through which selected provisions of the Bill of Rights are made applicable to the states through the Due Process clause of the Fourteenth Amendment.”

It is important to remember that prior to the incorporation doctrine, the courts could only enforce the protections found in the Bill of Rights against the Federal Government.  

To read the Fourteenth Amendment, click here.

Part 2: Understanding the Incorporation Doctrine

Part 2 is the final section of this book. In this section, you will learn the historical origin of the incorporation doctrine, the definition of selective incorporation, the difference between full and partial incorporation, which of the Amendments of the Bill of Rights have been incorporated, and what Supreme Court cases decided which of the Bill of Rights would become incorporated against the states.

What is the historical origin of the incorporation doctrine?

Prior to the ratification of the Fourteenth Amendment and the development of the incorporation doctrine, in Barron v. Baltimore, the Supreme Court held that the Bill of Rights applied only to the federal government.

Beginning in the 1920s, the United States Supreme Court interpreted the Fourteenth Amendment Due Process clause to “incorporate” most portions of the Bill of Rights, making these incorporated portions of the Bill of Rights enforceable against the state governments. The Due Process clause essentially is a legal obligation of all states to ensure that no one shall be: “deprived of life, liberty or property without due process of law.” To learn more about Due Process, click here.

It is a generally held belief that the incorporation doctrine can be traced back to the famous case of Gitlow v. New York (click here to read the Court’s opinion). In this case, the Court expressly held that States were bound to protect freedom of speech. This is significant, for since that time, the Supreme Court has incorporated many of the significant provisions of the Bill of Rights.

Gitlow v. New York is an example of a landmark Supreme Court case, for it changes that way that the Supreme Court views a particular legal issue, in this case, the freedom of speech.

What is the significance of selective incorporation?

Selective incorporation involves the gradual application of selected provisions of the Bill of Rights to the states through the Fourteenth Amendment Due Process clause.

“In the Slaughter-House Cases, the Supreme Court held that the Privileges and Immunities clause of the Fourteenth Amendment placed no restriction on the police powers of the state and it was intended to apply only to privileges and immunities of citizens of the United States and not the privileges and immunities of citizens of the individual states. This decision effectively put state laws beyond the review of the Supreme Court. To circumvent this, the Supreme Court began a process called “selective incorporation” by gradually applying selected provisions of the Bill of Rights to the states through the Fourteenth Amendment Due Process clause.” To learn more, click here.

What is the difference between full and partial incorporation?

As was explained on the previous page, only selected provisions of the Bill of Rights are applied to the states. When an Amendment from the Bill of Rights only has selected provisions incorporated, the Amendment is considered to be partially incorporated. On the other hand, when all provisions of a particular Amendment are incorporated, that Amendment is considered to be fully incorporated.

On the next page, a chart borrowed from www.law.cornell.edu visually organizes to what extent each Amendment is actually incorporated.

Incorporated Amendments and their corresponding cases:

The following Supreme Court cases resulted in an Amendment or selected provisions of an Amendment being incorporated against the states. More information about all of these cases can be found here.

1st Amendment: Everson v. Board of Education (establishment of religion), Cantwell v. Connecticut (free exercise of religion), Gitlow v. New York (freedom of speech), Near v. Minnesota (freedom of the press), DeJonge v. Oregon (freedom of assembly), and Edwards v. South Carolina (right to petition for a redress of grievances) 

2nd Amendment:McDonald v. City of Chicago

3rd Amendment:Engblom v. Carey- Note: (only incorporated against states within the jurisdiction of the US Court of Appeals for the 2nd circuit which includes Connecticut, New York and Vermont) Therefore it is designated as not being incorporated

4th Amendment: Mapp v Ohio (Freedom from unreasonable search and seizure) and Aguilar v Texas (Warrant requirements 

5th Amendment: Hurtado v California (Right to indictment by a grand jury not incorporated), Benton v Maryland (Double jeopardy), Malloy v Hogan (Right against Self-incrimination), Burlington & Quincy Railroad Co. v City of Chicago (Protection against taking property without due compensation)

6th Amendment: Click here for more information.

7th Amendment: Minneapolis & St. Louis R. Co. v Bombolis (The guarantee of a right to jury trial in civil cases (not incorporated)), Justices v Murray (The right to have no fact already tried by a jury reexamined in any Court other than according to the rules of the common law has been incorporated)

8th Amendment:  Schilb v Kuebel (Protection against excessive bail), McDonald v City of Chicago (Protection against excessive fines: (not incorporated)), Robinson v California (Protection against cruel and unusual punishments)

Let’s Review!

Now that you have completed sections 1 and 2 of this book, answer 5 review questions to check for understanding of the important concepts. Answers will be listed at the end of this review quiz.

1. What is the Bill of Rights?

a. All amendments to the Constitution

b. The first ten Amendments to the Constitution

c. The due process protections guaranteed by the 5th and 14th Amendments

d. Privileges and Immunities granted to the states

2. The Incorporation Doctrine is a constitutional doctrine that:

a. Gives the Federal Government the same legal protections as the states.

b. Applies certain provisions of state constitutions to federal cases in order to adapt to contemporary issues.

c. Requires Supreme Court judges to consider the validity of due process considerations with regard to the 14th Amendment.

d. Asserts that selected provisions of the Bill of Rights are made applicable to the states through the Due Process clause of the Fourteenth Amendment.

3. True or False?: Prior to the incorporation Doctrine, the Bill of Rights applied only to the Federal Government.

4. Explain the distinction between what it means to be either a partially or fully incorporated Amendment.

5. List one Amendment that is fully incorporated, one Amendment that is partially incorporated, and one Amendment that is not incorporated at all.

Review Quiz Answers:

1. b
2. d
3. True
4. When an Amendment from the Bill of Rights only has selected provisions incorporated, the Amendment is considered to be partially incorporated. On the other hand, when all provisions of a particular Amendment are incorporated, that Amendment is considered to be fully incorporated.
5. Fully incorporated: Amendments 1, 2, 4; Partially incorporated: Amendments 5, 6, 7, 8; Not incorporated: Amendment 3

Thanks for Reading!

Resources

1. www.supremecourt.gov
2. https://www.constitutionfacts.com/content/supremeCourt/files/SupremeCourt_LandmarkCases.pdf
3. http://www.billofrightsinstitute.org/founding-documents/bill-of-rights/
4. https://www.law.cornell.edu/wex/Privacy
5. https://www.law.cornell.edu/constitution/fifth_amendment
6. http://law2.umkc.edu/faculty/projects/ftrials/conlaw/cruelunusual.html
7. http://constitutioncenter.org/interactive-constitution/amendments/amendment-ix
8. https://www.loc.gov/rr/program/bib/ourdocs/14thamendment.html
9. https://www.law.cornell.edu/wex/due_process
10. http://caselaw.findlaw.com/us-supreme-court/268/652.html
11. https://supreme.justia.com/cases/federal/us/83/36/case.html
12. https://www.law.cornell.edu/wex/incorporation_doctrine
13. https://www.oyez.org/