The Incorporation Debate
The Issue: Does the Fourteenth Amendment "Incorporate" the Protections of the
Bill of Rights and Make Them Enforceable Against the States?
Introduction
Cases
The debate over whether the Fourteenth
Amendment makes applicable 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.
The Slaughter-House Cases (1873)
Adamson vs California (1947)
Duncan vs. Louisiana (1968)
McDonald vs Chicago (2010)
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
John Bingham, the principal drafter of the Fourteenth
Amendment
Incorporated or Not Incorporated?
The Crescent City Slaughterhouse--its monopoly was
challenged
in the 1873 Slaughterhouse Cases
1st Amendment: Fully incorporated.
2nd Amendment: Fully incorporated.
3rd Amendment: No Supreme Court decision; 2nd
Note that there are several possible positions that Circuit found to be incorporated.
4th Amendment: Fully incorporated.
could be taken with respect to the incorporation
debate. First, one could argue that the Fourteenth 5th Amendment: Incorporated except for clause
Amendment (either through the P & I Clause or the guaranteeing criminal prosecution only on a grand jury
Due Process Clause) made the specific provisions indictment.
of the Bill of Rights enforceable against the states 6th Amendment: Fully incorporated.
7th Amendment: Not incorporated.
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 naturallaw-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.
8th Amendment: Incorporated with respect to the
protection agains "cruel and unusual punishments,"
but no specific Supreme Court ruling on the
incorporation of the "excessive fines" and "excessive
bail" protections.
Questions
1. Which theory relating to the incorporation is best
supported by the history of the Fourteenth
Amendment?
2. What are the pragmatic reasons for favoring one or
another theory relating to incorporation?
3. Even assuming that a specific provision of the Bill
of Rights is "fundamental to the American scheme of
justice," should we apply every decision marking the
outer limits of the federal right to the states?
4. What evidence should we look to in determining
whether a right is fundamental to the American
scheme of justice? Whether history shows the right
has always been respected? Whether history shows
the right has been respected in recent
times? Whether or not the vast majority of states have
respected the right in question? What the framers and
ratifiers of the Bill of Rights thought about the
right? Whether or not we can imagine a fair system of
The most recent Court decision on incorporation
justice without the right in question?
came in the 2010 case of McDonald v Chicago,
5. If the Fourteenth Amendment was intended to
involving a challenge to Chicago's tough gun
make the provisions of the Bill of Rights applicable to
control legislation. Just two years earlier, the
Court had ruled in a case challenging a District of the states, it was the P & I Clause, not the Due
Process Clause, that was meant to accomplish
Columbia gun control regulation that the 2nd
Amendment guaranteed an individual right to bear that. Is it too late for the Supreme Court to correct its
error?
arms. In McDonald, by a 5 to 4 vote, the Court
held that the 2nd Amendment right was thought by 6. Assuming Justice Thomas in McDonald is correct-that the Privileges and Immunities Clause has more
ratifiers of the 14the Amendment "among those
historical support for being the proper vehicle for
fundamental rights necessary to our system of
incorporation--, should the P & I Clause have been the
ordered liberty" and is therefore now a right fully
basis for incorporation in that case?
enforceable against the states. Justice Thomas,
7. What do you think of the dissenters' argument in
concurring, argued that the better vehicle for
McDonald that the right to bear arms differs from all
incorporation, one truer to the original
rights previously incorporated in that exercise of the
understanding of the 14th Amendment, was the
right often results in physical harm to others, and
Privileges and Immunities Clause. Dissenters
therefore the Court should be reluctant to enforce such
argued that the right to bear arms, "unlike other
a right against the states?
forms of substantive liberty,...often put others'
lives at risk" and was therefore not the sort of
liberty the 14th Amendment protected against
state enforcement.
THE DRED SCOTT CASE AND THE ORIGINS OF
"PRIVILEGES AND IMMUNITIES"
The phrase "privileges and immunities" appears more
than two dozen times in the notorious 1857 Supreme
Court case of DredScott v Sandford. The Court
concluded that black persons were not entitled to the
privileges and immunities of citizens, which the Court
took broadly to include the rights to speak, bear arms,
assemble, and travel freely. John Bingham, primary
author of the Fourteenth Amendment, said that he used
the phrase "privileges and immunities" to specifically
overturn the language of Scott v Sandford. The
following passage comes from the 1857 Scott decision:
"...For if they [blacks] were so received, and entitled to
the privileges and immunities of citizens, it would
exempt them from the operation of the special laws and
from the police regulations which they considered to be
necessary for their own safety. It would give to persons
of the negro race, who were recognized as citizens in any
one State of the Union, the right to enter every other
State whenever they pleased, singly or in companies,
without pass or passport, and without obstruction, to
sojourn there as long as they pleased, to go where they
pleased at every hour of the day or night without
molestation, unless they committed some violation of
law for which a white man would be punished; and it
would give them the full liberty of speech in public and
in private upon all subjects upon which its own citizens
might speak; to hold public meetings upon political
affairs, and to keep and carry arms wherever they went.
And all of this would be done in the face of the subject
race of the same color, both free and slaves, and
inevitably producing discontent and insubordination
among them, and endangering the peace and safety of the
State."