INCORPORATION DOCTRINE

According to the incorporation doctrine the fourteenth amendment incorporates or absorbs the bill of rights, making its guarantees applicable to the states. Whether the Bill of Rights applied to the states, restricting their powers as it did those of the national government, was a question that arose in connection with the framing and ratification of the Fourteenth Amendment. Before 1868 nothing in the Constitution of the United States prevented a state from imprisoning religious heretics or political dissenters, or from abolishing trial by jury, or from torturing suspects to extort confessions of guilt. The Bill of Rights limited only the United States, not the states. james madison, who framed the amendments that became the Bill of Rights, had included one providing that "no State shall violate the equal rights of conscience, of the freedom of the press, or the trial by jury in criminal cases." The Senate defeated that proposal. History, therefore, was on the side of the Supreme Court when it unanimously decided in barron v. baltimore (1833) that "the fifth amendment must be understood as restraining the power of the general government, not as applicable to the States," and said that the other amendments composing the Bill of Rights were equally inapplicable to the States.

Thus, a double standard existed in the nation. The Bill of Rights commanded the national government to refrain from enacting certain laws and to respect certain procedures, but it left the states free to do as they wished in relation to the same matters. State constitutions and commonlaw practices, rather than the Constitution of the United States, were the sources of restraints on the states with respect to the subjects of the Bill of Rights.

Whether the Fourteenth Amendment was intended to alter this situation is a matter on which the historical record is complex, confusing, and probably inconclusive. Even if history spoke with a loud, clear, and decisive voice, however, it ought not necessarily control judgment on the question whether the Supreme Court should interpret the amendment as incorporating the Bill of Rights. Whatever the framers of the Fourteenth intended, they did not possess ultimate wisdom as to the meaning of their words for subsequent generations. Moreover, the privileges and immunities, due process, and equal protection clauses of section 1 of the amendment are written in language that blocks fixed meanings. Its text must be read as revelations of general purposes that were to be achieved or as expressions of imperishable principles that are comprehensive in character. The principles and purposes, not their framers' original technical understanding, are what was intended to endure. We cannot avoid the influence of history but are not constitutionally obligated to obey history which is merely a guide. The task of constitutional interpretation is one of statecraft: to read the text in the light of changing needs in accordance with the noblest ideals of a democratic society.

The Court has, in fact, proved to be adept at reading into the Constitution the policy values that meet its approval, and its freedom to do so is virtually legislative in scope. Regrettably in its first Fourteenth Amendment decision, in the slaughterhouse cases (1873), the Court unnecessarily emasculated the privileges and immunities clause by ruling that it protected only the privileges and immunities of national citizenship but not the privileges and immunities of state citizenship, which included "nearly every civil right for the establishment and protection of which organized government is instituted." Among the rights deriving from state, not national, citizenship were those referred to by the Bill of Rights as well as other "fundamental" rights. Justice stephen j. field, dissenting, rightly said that the majority's interpretation had rendered the clause "a vain and idle enactment, which accomplished nothing.…" The privileges and immunities clause was central to the incorporation issue because to the extent that any of the framers of the amendment intended incorporation, they relied principally on that clause. Notwithstanding the amendment, Barron v. Baltimore remained controlling law. The Court simply opposed the revolution in the federal system which the amendment's text suggested. The privileges and immunities of national citizenship after Slaughterhouse were those that Congress or the Court could have protected, under the supremacy clause, with or without the new amendment.

In hurtado v. california (1884) the Court initiated a long line of decisions that eroded the traditional procedures associated with due process of law. Hurtado was not an incorporation case, because the question it posed was not whether the Fourteenth Amendment incorporated the clause of the Fifth guaranteeing indictment by grand jury but whether the concept of due process necessarily required indictment in a capital case. In cases arising after Hurtado, counsel argued that even if the concept of due process did not mean indictment, or freedom from cruel and unusual punishment, or trial by a twelve-member jury, or the right against self-incrimination, the provisions of the Bill of Rights applied to the states through the Fourteenth Amendment; that is, the amendment incorporated them either by the privileges and immunities clause, or by the due process clause's protection of "liberty." In O'Neil v. Vermont (1892), that argument was accepted for the first time by three Justices, dissenting; however, only one of them, john marshall harlan, steadfastly adhered to it in maxwell v. dow (1900) and twining v. new jersey (1908), when all other Justices rejected it. Harlan, dissenting in Patterson v. Colorado (1907), stated "that the privilege of free speech and a free press belong to every citizen of the United States, constitute essential parts of every man's liberty, and are protected against violation by that clause of the Fourteenth Amendment forbidding a state to deprive any person of his liberty without due process of law." The Court casually adopted that view in obiter dictum in gitlow v. new york (1925).

Before Gitlow the Court had done a good deal of property-minded, not liberty-minded, incorporating. As early as Hepburn v. Griswold (1870), it had read the protection of the contract clause into the Fifth Amendment's due process clause as a limitation on the powers of Congress, a viewpoint repeated in the sinking fund cases (1879). The Court in 1894 had incorporated the Fifth's just compensation clause into the Fourteenth's due process clause and in 1897 it had incorporated the same clause into the Fourteenth's equal protection clause. In the same decade the Court had accepted substantive due process, incorporating within the Fourteenth a variety of doctrines that secured property, particularly corporate property, against "unreasonable" rate regulations and reformist labor legislation. By 1915, however, procedural due process for persons accused of crime had so shriveled in meaning that Justice oliver wendell holmes, dissenting, was forced to say that "mob law does not become due process of law by securing the assent of a terrorized jury."

The word "liberty" in the due process clause had absorbed all first amendment guarantees by the time of the decision in everson v. board of education (1947). Incorporation developed much more slowly in the field of criminal justice. powell v. alabama (1932) applied to the states the sixth amendment ' s right to counsel in capital cases, as a "necessary requisite of due process of law." The Court reached a watershed, however, in palko v. connecticut (1937), where it refused to incorporate the ban on double jeopardy. Justice benjamin n. cardozo sought to provide a "rationalizing principle" to explain the selective or piecemeal incorporation process. He repudiated the notion that the Fourteenth Amendment embraced the entire Bill of Rights, because the rights it guaranteed fell into two categories. Some were of such a nature that liberty and justice could not exist if they were sacrificed. These had been brought "within the Fourteenth Amendment by a process of absorption" because they were "of the very essence of a scheme of ordered liberty." In short, they were "fundamental," like the concept of due process. Other rights, however, were not essential to a "fair and enlightened system of justice." First Amendment rights were "the indispensable condition" of nearly every other form of freedom, but jury trials, indictments, immunity against compulsory self-incrimination, and double jeopardy "might be lost, and justice still be done."

The difficulty with Palko 's rationalizing scheme was that it was subjective. It offered no principle explaining why some rights were fundamental or essential to ordered liberty and others were not; it measured all rights against some abstract or idealized system, rather than the Anglo-American accusatory system of criminal justice. Selective incorporation also completely lacked historical justification. And it was logically flawed. The Court read the substantive content of the First Amendment into the "liberty" of the due process clause, but that clause permitted the abridgment of liberty with due process of law. On the other hand, selective incorporation, as contrasted with total incorporation, allowed the Court to decide constitutional issues as they arose on a case-by-case basis, and allowed, too, the exclusion from the incorporation doctrine of some rights whose incorporation would wreak havoc in state systems of justice. Grand jury indictment for all felonies and trials by twelve-member juries in civil suits involving more than twenty dollars are among Bill of Rights guarantees that would have that result, if incorporated.

In Adamson v. California (1947) a 5–4 Court rejected the total incorporation theory advanced by the dissenters led by Justice hugo l. black. Black lambasted the majority's due process standards as grossly subjective; he argued that only the Justices' personal idiosyncrasies could give content to "canons of decency" and "fundamental justice." Black believed that both history and objectivity required resort to the "specifics" of the Bill of Rights. Justices frank murphy and wiley rutledge would have gone further. They accepted total incorporation but observed that due process might require invalidating some state practices "despite the absence of a specific provision in the Bill of Rights." Justice felix frankfurter, replying to Black, denied the subjectivity charge and turned it against the dissenters. Murphy's total-incorporation-"plus" was subjective; total incorporation impractically fastened the entire Bill of Rights, with impedimenta, on the states along with the accretions each right had gathered in the United States courts. Selective incorporation on the basis of individual Justices' preferences meant "a merely subjective test" in determining which rights were in and which were out.

Frankfurter also made a logical point long familiar in constitutional jurisprudence. The due process clause of the Fourteenth, which was the vehicle for incorporation, having been copied from the identical clause of the Fifth, could not mean one thing in the latter and something very different in the former. The Fifth itself included a variety of clauses. To incorporate them into the Fourteenth would mean that those clauses of the Fifth and in the remainder of the Bill of Rights were redundant, or the due process clause, if signifying all the rest, was meaningless or superfluous. The answer to Frankfurter and to those still holding his view is historical, not logical. The history of due process shows that it did mean trial by jury and a cluster of traditional rights of accused persons that the Bill of Rights separately specified. Its framers were in many respects careless draftsmen. They enumerated particular rights associated with due process and then added the due process clause partly for political reasons and partly as a rhetorical flourish—a reinforced guarantee and a genuflection toward traditional usage going back to medieval reenactments of magna carta.

Numerous cases of the 1950s showed that the majority's reliance on the concept of due process rather than the "specifics" of the Bill of Rights made for unpredictable and unconvincing results. For that reason the Court resumed selective incorporation in the 1960s, beginning with mapp v. ohio (1961) and ending with Benton v. Maryland (1969). The Warren Court's "revolution in criminal justice" applied against the states the rights of the Fourth through Eighth Amendments, excepting only indictment, twelve-member civil juries, and bail. in re winship (1970) even held that proof of crime beyond a reasonable doubt, though not a specific provision of the Bill of Rights, was essential to due process, and various decisions have suggested the Court's readiness to extend to the states the Eighth Amendment's provision against excessive bail.

The specifics of the Bill of Rights, however, have proved to offer only an illusion of objectivity, because its most important clauses, including all that have been incorporated, are inherently ambiguous. Indeed, the only truly specific clauses are the ones that have not been incorporated—indictment by grand jury and civil trials by twelve-member juries. The "specific" injunctions of the Bill of Rights do not exclude exceptions, nor are they self-defining. What is "an establishment of religion " and what, given libels, pornography, and perjury, is "the freedom of speech" or "of the press"? These freedoms cannot be abridged, but what is an abridgment? Freedom of religion may not be prohibited; may freedom of religion be abridged by a regulation short of prohibition? What is an " unreasonable " search, " probable " cause, or "excessive" bail? What punishment is "cruel and unusual"? Is it really true that a person cannot be compelled to be a witness against himself in a criminal case and that the Sixth Amendment extends to "all" criminal prosecutions? What is a "criminal prosecution," a " speedy " trial, or an "impartial" jury? Ambiguity cannot be strictly construed. Neutral principles and specifics turn out to be subjective or provoke subjectivity. Moreover, applying to the states the federal standard does not always turn out as expected. After duncan v. louisiana (1968) extended the trial by jury clause of the Sixth Amendment to the states, the Court decided that a criminal jury of less than twelve (but not less than six) would not violate the Fourteenth Amendment, nor would a non-unanimous jury decision. (See jury size.) Examples can be multiplied to show that the incorporation doctrine has scarcely diminished the need for judgment and that judgment tends to be personal in character.

On the whole, however, the Court has abolished the double standard by nationalizing the Bill of Rights. The results have been mixed. More than ever justice tends to travel on leaden feet. Swift and certain punishment has always been about as effective a deterrent to crime as our criminal justice system can provide, and the prolongation of the criminal process from arrest to final appeal, which is one result of the incorporation doctrine, adds to the congestion of prosecutorial caseloads and court dockets. However, the fundamental problem is the staggering rise in the number of crimes committed, not the decisions of the Court. Even when the police used truncheons to beat suspects into confessions and searched and seized almost at will, they did not reduce the crime rate. In the long run a democratic society is probably hurt more by lawless conduct on the part of law-enforcement agencies than by the impediments of the incorporation doctrine. In the First Amendment field, the incorporation doctrine has few critics, however vigorously particular First Amendment decisions may be criticized.

Leonard W. Levy
(1986)

Bibliography

Abraham, Henry J. 1977 Freedom and the Court, 3rd ed. Pages 33–105. New York: Oxford University Press.

Cortner, Richard C. 1981 The Supreme Court and the Second Bill of Rights: The Fourteenth Amendment and the Nationalization of Civil Liberties. Madison: University of Wisconsin Press.

Friendly, Henry J. 1967 Benchmarks. Pages 235–265. Chicago: University of Chicago Press.

Henkin, Louis 1963 "Selective Incorporation" in the Fourteenth Amendment. Yale Law Journal 73:74–88.

North, Arthur A. 1966 The Supreme Court: Judicial Process and Judicial Politics. Pages 65–133. New York: Appleton-Century-Crofts.