The Crescent City Slaughterhouse--its monopoly was challenged
in the 1873 Slaughterhouse Cases
there are several
possible positions that could be taken with respect to the
debate. First, one could argue that the Fourteenth Amendment
through the P & I Clause or the Due Process Clause) made the
provisions of the Bill of Rights enforceable against the states and no
more. This was the view argued for by Justice Black.
one could argue that the provisions of the Bill of Rights are
irrelevant to interpretation of the Fourteenth Amendment, and that
of the Due Process Clause are to be determined by a natural-law-like
such as "Does the state's action shock the conscience?" or "Is the
action inconsistent with our concept of ordered liberty"? This is the
Incorporation" Theory advanced by Justice Frankfurter, among
Third, one could take a position such as Justice White did in Duncan
that the Fourteenth Amendment incorporates certain fundamental
but not other non-fundamental provisions. This view is often
the "Selective Incorporation" Theory. Finally, one could adopt
a "Selective Incorporation Plus" view or a "Total Incorporation Plus"
Justice Murphy's view in Adamson, for example) view.
views hold that in addition to incorporating some or all of the
of the Bill of Rights, the Fourteenth Amendment also prohibits certain
other fundamental rights from being abridged by the states.
recent Court decision on incorporation came in the 2010 case of McDonald v Chicago, involving a
challenge to Chicago's tough gun control legislation. Just two
years earlier, the Court had ruled in a case challenging a District of
Columbia gun control regulation that the 2nd Amendment guaranteed an
individual right to bear arms. In McDonald, by a 5 to 4 vote, the
Court held that the 2nd Amendment right was thought by ratifiers of the
14the Amendment "among those fundamental rights necessary to our system
of ordered liberty" and is therefore now a right fully enforceable
against the states. Justice Thomas, concurring, argued that the
better vehicle for incorporation, one truer to the original
understanding of the 14th Amendment, was the Privileges and Immunities
Clause. Dissenters argued that the right to bear arms, "unlike
other 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.
Bill of Rights
Incorporated or Not Incorporated?
2nd Amendment: Fully incorporated.
3rd Amendment: No Supreme Court decision; 2nd Circuit found to be incorporated.
4th Amendment: Fully incorporated.
5th Amendment: Incorporated except for clause guaranteeing criminal prosecution only on a grand jury indictment.
6th Amendment: Fully incorporated.
7th Amendment: Not incorporated.
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.
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 justice without the right in question?
5. If the Fourteenth Amendment was intended to make the provisions of the Bill of Rights applicable to the states, it was the P & I Clause, not the Due Process Clause, that was meant to accomplish that. Is it too late for the Supreme Court to correct its error?
6. Assuming Justice Thomas in McDonald is correct--that the Privileges and Immunities Clause has more historical support for being the proper vehicle for incorporation--, should the P & I Clause have been the basis for incorporation in that case?
7. What do you think of the dissenters' argument in McDonald that the right to bear arms differs from all rights previously incorporated in that exercise of the right often results in physical harm to others, and therefore the Court should be reluctant to enforce such a right against the states?