Incorporation (pp. 447–448, 458–474)

Process of Incorporation: the process of incorporating the substantive protections granted in the Bill of Rights into the Due Process Clause of the 14th Amendment.

  • Denial of these rights would thus be a denial of due process under the law.
    Selective Incorporation
  • One-by-one, essentially every provision of the Bill of Rights has been incorporated.
    Implication
  • If an amendment has been incorporated into the 14th Amendment's Due Process Clause, then it applies to federal, state, and local governments.
    • Local governments = "state actors"
      Common Incorporation Analysis: used to determine if a right should be incorporated.
  1. Is the right in question fundamentally interwoven into the U.S.'s legal and societal history?
  2. How did states view/treat/effectuate this right at the time of incorporation?
  3. How do states view/treat/effectuate this right now?
    History of Incorporation
  • Burlington & Quincy Railroad Co. v. City of Chicago: early signs
    • Under the 14th Amendment, States cannot take property without just compensation.
    • Did not directly mention incorporation, but effectively did it.
  • Twinning v. New Jersey: recognition of the principle
    • Rights that are "fundamental" principles of liberty and justice are incorporated within the Due Process Clause of the 14th Amendment.
    • Here, the Court held that privilege against self-incrimination (5th Amendment) was not incorporated.
  • Gitlow v. New York: incorporation of the First Amendment
  • Fiske v. Kansas: State law regulating speech found unconstitutional under the 14th Amendment's incorporation of the First Amendment
  • Powell v. Alabama: 6th Amendment's right to counsel incorporated
  • Palko v. Connecticut: foundational framework for incorporation
    • Framework: to be incorporated, the right must be "of the very essence of a scheme of ordered liberty" and "so rooted in the traditions and conscience of our people as to be ranked as fundamental."
      • Not all constitutional rights meet this standard.
    • In this case, the Court held that double jeopardy did not meet this standard; overturned in Benton v. Maryland, but the standard is still relevant.
  • Adamson v. California: 5th amendment's failed attempt at incorporation
    • Reaffirmed Palko, wherein not all rights are to be incorporated.
    • Here, the 5th Amendment's right against self-incrimination was not incorporated; overturned in Malloy v. Hogan.
      Modern Incorporation Doctrine
  • McDonald v. City of Chicago
  • Ramos v. Louisiana
  • Timbs v. Indiana
    Unincorporated Bill of Rights Provisions:
  1. 3rd Amendment's prohibition against quartering soldiers; would like be incorporated if challenged.
  2. 5th Amendment's right to a grand jury indictment in criminal cases.
  3. 7th Amendment's right to a jury trial in a civil case.
    1. States can eliminate juries in civil trials without violating the Constitution.