Incorporation of the Bill of Rights
An Accounting of the Supreme Court’s Extension of Federal Civil Liberties to the States
Summary
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"In addition to specific amendments to the Constitution, the Supreme Court has a long history of incorporating certain rights and extending them to the states. In this careful and thoughtful study, Gary Bugh covers this development with clear and fascinating detail. A major contribution to our understanding of constitutional law and an important resource for scholars, attorneys, and judges."—Louis Fisher, Visiting Scholar at the William and Mary Law School
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"In this meticulously researched book, Professor Bugh individually examines each of the rights listed in the first eight amendments to the U.S. Constitution. He further indicates whether the Supreme Court has incorporated each right into the Due Process Clause of the Fourteenth Amendment and, if so, when it did. It is quite helpful and convenient to have this information assembled in a single place and with such attention to detail, including relevant case citations."—John Vile, Dean and Professor of Political Science at Middle Tennessee State University
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"Incorporation of the Bill of Rights is the essential guide to which federal protections the U.S. Supreme Court has extended to the state level. Professor Gary Bugh provides an invaluable service with his detailed content analysis of justices’ written opinions. The multiple essays of the book, each one covering a single right, offer a unique approach to understanding the topic, including the relationships between justices’ theoretical defenses and incorporation rulings. Teachers, students, and legal professionals will find the book a reliable source about incorporation for years to come."—Donald Gooch, Associate Professor of Political Science at Stephen F. Austin State University
Excerpt
Table Of Contents
- Cover
- Advance Praise
- Title
- Copyright
- About the author
- About the book
- This eBook can be cited
- Table of Contents
- Acknowledgments
- Preface
- Introduction
- Part I First Amendment
- Establishment of Religion
- Exercise of Religion
- Freedom of Speech
- Freedom of the Press
- Peaceably Assemble
- Petition Government
- Part II Second Amendment
- Keep and Bear Arms
- Part III Third Amendment
- Quartering Soldiers
- Part IV Fourth Amendment
- Unreasonable Searches and Seizures
- Valid Search Warrants
- Part V Fifth Amendment
- Grand Jury
- Double Jeopardy
- Self-Incrimination
- Due Process of Law
- Just Compensation
- Part VI Sixth Amendment
- Speedy Trial
- Public Trial
- Impartial Jury
- Jury Trial
- Jury of Same State and District as Crime
- Informed of Accusation
- Confront Witnesses
- Favorable Witnesses
- Counsel
- Part VII Seventh Amendment
- Civil Jury Trial
- Re-examination of Facts
- Part VIII Eighth Amendment
- Excessive Bail
- Excessive Fines
- Cruel and Unusual Punishments
- Conclusion
- Appendix A The Bill of Rights
- Appendix B Incorporated Rights and Relevant Cases by Amendment
- Appendix C Incorporated Rights and Relevant Cases by Year
- Bibliography
- Cases
- Index
Acknowledgments
This volume of incorporated federal rights would not have been possible without the cooperation and assistance of several people. My family and friends have always supported my scholastic endeavors wherever they have taken me, which includes having civil discussions over complicated topics and issues. Texas A&M University extended support throughout the project. The blind reviewers and other scholars provided invaluable suggestions that enhanced my analysis. Guidance from the Peter Lang editors assured the production of a high-quality book. Overall, I am grateful to all those who think that it is a good idea to know about incorporation.
Preface
The vast literature on the U.S. Bill of Rights does not include many works identifying the federal civil liberties that the Supreme Court has protected against state violation. The Bill of Rights originally provided insulation from federal government abuse of power. Over time, mostly during the twentieth century, the Supreme Court selectively expanded these federal guarantees to the states. Some scholars and Court justices have identified incorporated rights and attending cases, but these lists do not correspond. Some scholars and justices include protections in their lists of incorporated rights that the Bill of Rights does not enumerate. Regardless, many of these and other works inspired me to investigate which Bill of Rights’ protections the Court regards as incorporated.
Several pieces of scholarship that began to pique my interest in delineating incorporated rights included Fred Friendly and Martha Elliot’s popular 1984 book, The Constitution That Delicate Balance, Paul Bartholomew’s 1964 article in the American Bar Association Journal, “The Gitlow Doctrine Down to Date,” Richard Cortner’s 1981 Second Bill of Rights book, and Louis Fisher and Katy Harriger’s regularly updated public law textbook, American Constitutional Law.
While incorporation was not the focus of Friendly and Elliot’s book, they drew attention to why the Fourteenth Amendment and incorporated rights matter. The thrust of their narratives was that the Court’s use of the Fourteenth Amendment Due Process Clause to protect rights against state transgression ←ix | x→strengthened each person’s ability to check government power. Bartholomew in a short article listed some incorporated rights and explained how Gitlow v. New York (1925) contributed to the Court’s incorporation rationale. Cortner reviewed the Court’s approaches to defending federal rights at the state level, described different incorporation timeframes, and identified several incorporation cases. Along with discussing political interests involved with Court rulings, Fisher and Harriger have provided one of the more detailed tables of incorporated rights and related cases. I am certainly indebted to these and other works addressing incorporation.
This book presents a catalog of incorporated rights and incorporation cases based on what justices have written in Court opinions. This does not mean that justices are right, or all agree about the incorporation standing of any given civil liberty. It also does not mean that the Court is necessarily the nation’s defender of rights. In researching the Court’s views on the incorporation status of federal civil liberties, I discovered a few surprises along the way. These included finding some rights that I thought the Court had already protected against states remain unincorporated, notably the due process guarantee of the Fifth Amendment and civil jury trial provisions of the Seventh Amendment.
This is a comprehensive study of the Court’s incorporation of the Bill of Rights. Students, teachers, scholars, and practitioners will find this book an indispensable resource for understanding which federal civil liberties the Court has applied to the states and in which cases. It also illuminates incorporation as an important concept of America’s political lexicon. This analysis is a step toward greater understanding of rights in civil society, suggesting new avenues of research, including finding additional Court confirmations of incorporated rights and evaluating the strength of civil liberties in the U.S. federal system.
Introduction
After decades of not doing so, the U.S. Supreme Court recently incorporated two federal rights: keep and bear arms of the Second Amendment and no excessive fines of the Eighth Amendment. The Bill of Rights addresses several civil liberties. Which ones has the Court protected against state governments? To find out, this work focuses on justices’ written statements in their legal opinions about the extension of these rights to the state level. In other words, rather than scholars, commentators, or anyone else, which rights do justices regard as incorporated? Through an analysis of Court opinions, this volume also identifies the cases most relevant to incorporated and unincorporated rights.
This inventory of incorporated rights and attending cases provides a valuable resource for anyone interested in the nation’s constitutional order. It serves as reminder of the importance of incorporation, which adds a layer of protection against government abuse throughout the United States. While states have their own constitutional rights, as the country’s history demonstrates, local and state governments are more likely to suppress individual liberty if federal rights remain unincorporated. Incorporated rights strengthen individuals’ power to control government. Yet, effective use of these civil liberties at the state level depends upon the continued support of the people, their representatives, and the Court. Gaining greater knowledge about incorporation enhances our understanding of rights.
Why Needed?
Along with a near absence of research distinguishing incorporated rights is an inconsistency among available lists. Occasionally, a justice in an opinion will identify incorporated rights along with related cases.1 Some scholarship has addressed the incorporation status of a few Bill of Rights’ protections.2 Most constitutional law textbooks provide such tables. Discrepancies exist among all these listings, however.
Some simply leave aside a few rights, implying that the Court has not yet incorporated them, such as the First Amendment petitioning government guarantee.3 It has not been uncommon for justices to cite different incorporation cases for the same right. For example, while many agree Gitlow v. New York (1925) incorporated the First Amendment right of free speech, some credit Whitney v. California (1927), Fiske v. Kansas (1927), Lovell v. Griffin (1938), Staub v. Baxley (1958), Edwards v. South Carolina (1963), New York Times v. Sullivan (1964), or some combination of these decisions.4 Such is the case with some other rights. Not all justices recognize Near v. Minnesota (1931) as incorporating freedom of the press.5 A few instead reference Gitlow, Lovell, Grosjean v. American Press (1936), New York Times, or two or more of these cases.6 The general consensus is that the ←2 | 3→Court extended the Fourth Amendment protection against unreasonable searches and seizures to the states in Wolf v. Colorado (1949); however, some also include Elkins v. United States (1960) and Mapp v. Ohio (1961).7
One reason for the inconsistencies is that, in discussions about incorporation, justices tend to focus more on elaborating theoretical approaches than on identifying specific rights and cases. The Court in several decisions reasoned that the Due Process Clause of the Fourteenth Amendment protected a federal guarantee at the state level. Justices have often described this rationale along with cases in which the Court contributed to its development or used it to defend rights. For example, in his review of the Due Process Clause protection of “fundamental safeguards of liberty,” Justice Hugo Black in Gideon v. Wainwright (1963) explained that the Court incorporated “speech and press” in Gitlow and Lovell, “speech” in Staub, and “speech, assembly, petition for redress of grievances” in Edwards.8 Similarly, when Justice William Brennan in Malloy v. Hogan (1964) noted that the Court applied to the state level “speech and press” in Gitlow, Lovell, and New York Times and “speech” in Staub, he too was addressing the Court’s use of the Due Process Clause to protect rights from state infringement.9
Another reason for differences among identified incorporation lists is that determining incorporated rights and their cases is no easy task. Along with referencing different or multiple cases for extending the same provision to the states, justices may disagree about the incorporation status of some rights. It may be that a lower federal court has protected a civil liberty against state governments, but the Court has not yet heard a case about the same right. Perhaps the Court perceives states as already following due process of law, negating a reason for extending a specific Bill of Rights’ guarantee to the state level. It could be that the Court has held a right as a limitation only upon the federal government. It may have incorporated a single right in different cases to varying degrees.
Taking an Account
This review explores Court opinions to identify incorporated rights and relevant cases. The examined texts are numerous, beginning with justices’ incorporation ←3 | 4→lists. Justice Samuel Alito’s catalog of incorporated rights and corresponding cases in McDonald v. Chicago (2010) is more extensive than other justice descriptions but does not address every Bill of Rights’ guarantee. Nevertheless, it serves as the starting point for selecting opinions to investigate for incorporation statements. Other justice compilations of incorporated federal guarantees offer additional suggestions while also confirming some of Alito’s information. For civil liberties that justices did not mention in their incorporation listings, research consulted Court opinions that addressed the rights as well as scholarship to help identify cases to investigate. While analysis did not consider every judicial opinion, it investigated enough of those in the orbit of each federal right to answer whether the Court had extended the civil liberty to the states and in which case. This includes a gauge of the Court’s confirmations of each incorporated right. References to “the Court” indicate at least plurality consensus, not necessarily that all justices agree on a right’s incorporation defense, standing, or case.
In this content analysis of Court decisions, at least one statement asserting application of a Bill of Rights’ protection to the state level in a majority or plurality opinion means that the Court has incorporated the right. Such incorporation statements may be apparent and distinct. However, some statements may be ambiguous or discursive, only clarified when considered in relation to the issue of the case, other passages in the opinion, statements in accompanying concurrences or dissents, or even other decisions. These initial statements also help identify the most relevant decision to a right’s incorporation status.
Details
- Pages
- XII, 226
- ISBN (PDF)
- 9781433196324
- ISBN (ePUB)
- 9781433196331
- ISBN (Hardcover)
- 9781433196317
- DOI
- 10.3726/b19589
- Language
- English
- Publication date
- 2022 (December)
- Keywords
- Incorporation Bill of Rights Supreme Court Justices Fourteenth Amendment Due Process Liberty Rights Civil Liberties Fundamental Rights Constitution Political Science
- Published
- New York, Bern, Berlin, Bruxelles, Oxford, Wien, 2023. XII, 226 pp., 6 tables
