Incorporation Doctrine

Incorporation Doctrine By the incorporation doctrine, the United States Supreme Court has held that most, but not all, guarantees of the federal Bill of Rights limit state and local governments as well as the federal government through the Due Process Clause of the Fourteenth Amendment. States have been required to respect freedom of speech, press, and religion, and most of the other guarantees. They have not been required to provide jury trials in civil cases or indictment by grand jury, however (see Second Amendment; Third Amendment).

Whether the guarantees that are “incorporated” apply to the states just as they apply to the federal government has been the subject of judicial controversy. Usually the guarantees have the same operation in each case. With reference to the First Amendment, a historical and functional argument could be made (based on statements by the framers of the original Constitution) for a more nearly absolute prohibition at the federal level (of sedition or obscenity laws, for example). Such an argument has not prevailed in the courts.

The incorporation doctrine has a curious and intensely controversial history. Until 1866 the rule, established by the Supreme Court in 1833 in the case of Barron v. Baltimore, was that guarantees of the federal Bill of Rights limited only the federal government, not state governments.

From the 1830s until the Civil War, southern states made speech and publication critical of slavery a crime. A number of leading Republicans viewed these statutes as violations of the constitutional rights to free speech, press, and religion recognized and protected by the First Amendment and other provisions of the Constitution. After the Civil War and before the ratification of the Fourteenth Amendment, Republicans complained that southern states were denying African‐Americans, Republicans, and loyalist citizens basic rights to free speech and press, to due process, and to bear arms.

The Fourteenth Amendment made all persons born in the United States citizens and provided that no state should abridge the privileges or immunities of citizens or deny due process or equal protection to any person (see Citizenship). In early American history and especially in the years between 1835 and 1866, rights in the Bill of Rights had often been described as “privileges” or “immunities” belonging to all American citizens under the Constitution. Several of the amendment's framers suggested that privileges or immunities of citizens of the United States included rights in the Bill of Rights. In 1866, no senator or representative explicitly contradicted them on this point and a number suggested the amendment protected the constitutional rights of American citizens. Yet most congressmen and speakers during ratification debates did not address the point and others made remarks that some have read as inconsistent with application of the Bill of Rights to the states.

In the Slaughterhouse Cases (1873), the Court considered whether Louisiana could grant a monopoly on slaughtering animals. The majority held it could. Slaughterhouse and following cases seemed to deprive the Privileges or Immunities Clause of any significant meaning. Cases following Slaughterhouse held one after another of the guarantees of the Bill of Rights did not limit the states. Then, first the guarantee that private property would not be taken for public use without just compensation (Chicago, Burlington and Quincy Railroad Co. v. Chicago, 1897) and later free speech and press (Gitlow v. New York, 1925) were construed to be limits on the states.

So the Court began to incorporate particular Bill of Rights guarantees selectively as limits on the states. In 1937, in Palko v. Connecticut, with little attention to section one of the Fourteenth Amendment, the Court explained that some privileges and immunities in the Bill of Rights were so fundamental that the states were required to respect them under the Due Process Clause; other Bill of Rights privileges and immunities were less important, so states were free to disregard them.

Then in 1947, in Adamson v. California, Justice Hugo black, speaking for four dissenting justices, argued that the Fourteenth Amendment required the states to respect all rights specified in the Bill of Rights. Though his view did not prevail, the Court later overruled a number of prior cases (including Palko) and applied almost all guarantees of the Bill of Rights to the states.

In the 1980s, Edwin Meese, then attorney general, and others criticized the incorporation doctrine as inconsistent with the intent of the Framers of the Constitution. So far these attacks have not been successful. Instead, many decisions embraced by “conservatives” have been based on incorporation of the Bill of Rights as a limit on the states.

See also Federalism; State Action.

Bibliography

Michael Kent Curtis , No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (1986).
William Nelson , The Fourteenth Amendment: From Political Principle to Judicial Doctrine (1988).

Michael Kent Curtis