Talk:Incorporation of the Bill of Rights

Incorporation/Original Intent
I would bristle at any attempt to say that incorporation is historically compelled. For one thing, the suggestion is POV as there has been much written to oppose this view-- R. Berger, e.g. The original Bill of Rights merely stated the truism that all power not granted is reserved, so it seemed natural that the "incorporated" Bill of Rights would not interfere with the existing "police power" of the states-- and I'm sure this was stated in the Cong. Globe. I also think the evidence that the framers of the 14th meant to incorporate the procedural elements of the Bill of Rights is exceedingly slim-- incorporation of these elements only occurred in the 1960s. Please Don&#39;t BlockPlease Don't Block

Change of "Incorporation timeline" subhead and content to "Which rights have been incorporated?"
With apologies to the previous contributor, I have changed this subhead and its content to include a hopefully exhaustive list of the rights that have been incorporated, listed by amendment by clause (i.e., individual right). I felt this would be more useful to people who want a quick view of which rights have been incorporated and the respective cases (users can reconstruct a timeline using the dates shown). I added citations to each case and hyperlinked as much as possible. I retained the commentary on existing cases and added some commentary to those cases/rights not previously listed. There seems to be some minor disagreement (above) on those rights that have not been explicitly incorporated; I tried to retain consistency between my list and the text at the top of this article. In a few cases, I wrote, "Has not been incorporated." Feel free to doublecheck this, of course.

Original Intent
When the initial author and sponsor of the 14th Amendment, Representative John Bingham of Ohio, advocated for the amendment in Congress in 1866, he repeatedly stated that the aim or intent was to allow Congress to be able to enforce the Bill of Rights against state action. He said that he considered the civil rights contained therein to be the same sort of immunities and privileges as had been mentioned within the body of the Constitution. Even his opposition acknowledged this intent.

In submitting the amendment for consideration in the Senate, a colleague of Bingham from the Joint Conference Committee on Reconstruction, Senator Howard of Michigan, reiterated the argument that the Bill of Rights would be applied to the states through the "privileges or immunities" clause of the amendment.

It must be noted that neither gentleman (nor apparently any of the other speakers in the debate) alleged that those rights within the Bill of Rights were to be applied to state powers, or incorporated within the states, by way of the "due process" clause. The stated link was explicitly the "privileges or immunities" clause.

Also, none of the participants excepted the 2nd Amendment right to bear arms nor the 5th Amendment right to grand jury indictment/presentment, as the US Supreme Court has done.

In fact, contemporary statutory legislation being considered in Congress at the same time as the 14th Amendment, the Freedmen's Bureau Bill and the Civil Right Act of 1866 Bill, both aimed, in part, to enforce against state action the right of Blacks to bear arms for self-defense. This right was deemed to be a fundamental privilege of US citizenship, and so was extended by these bills to Blacks as well as Whites. Both bills passed.

(Congressional Globe, 39th Congress, 1st Session, 1866)

Selective incorporation is a judicial construct calculated to prop up the ephemeral arbitrary choice of US Supreme Court judges above the law itself. If judges deem a right to be sufficiently "fundamental", then the right is incorporated. If the judges do not approve of a particular right, or deem steadfast enforcement of the right to be too cumbersome, then they arbitrarily deem the right to be insufficiently "fundamental", and decide that the appellant is not entitled to that right via due process.

All of which violates the intent of the framers of the amendment, who clearly stated that all of the rights within the Bill of Rights were supposed to be held applicable to the states, and not just the ones that a majority of judges happen to personally approve of at any given moment in time.

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)

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)

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,, 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)