The Incorporation Debate

Does the Fourteenth Amendment “Incorporate” the Protections of the Bill of Rights and Make Them Enforceable Against the States?

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 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.  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.

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 14th Amendment “among those fundamental rights necessary to our system of ordered liberty” and is therefore now a right fully enforceable against the states.

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 against “cruel and unusual punishments,” but no specific Supreme Court ruling on the incorporation of the “excessive fines” and “excessive bail” protections.