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
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 Crescent City Slaughterhouse--its monopoly was challenged
 in the 1873 Slaughterhouse Cases

Note that there are several possible positions that could be taken with respect to the incorporation debate.  First, one could argue that the Fourteenth Amendment (either through the P & I Clause or the Due Process Clause) made the specific provisions of the Bill of Rights enforceable against the states 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 natural-law-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.

The most 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.

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." 

Cases
The Slaughter-House Cases (1873)
Adamson vs California (1947)
Duncan vs. Louisiana (1968)
McDonald vs Chicago (2010)
 

Antagonists in the incorporation debate: Justice Frankfurter (L) and Justice Black (R) and some rubber chicken 

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?

1st Amendment: Fully 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.

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 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?
 
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