Process by which the Supreme Court has gradually nationalized the Bill of Rights, requiring state governments to extend to residents much the same rights as the federal government must.
In Barron v. Baltimore
Justice Samuel F. Miller, who served on the Court from 1862 to 1890, held a narrow view of the Fourteenth Amendment's relevance to the Bill of Rights.
After the passage of the Fourteenth Amendment
In the Slaughterhouse Cases
Justice Samuel F. Miller wrote an opinion that differentiated between privileges or immunities of U.S. citizenship
The Court continued its narrow interpretation of the privileges or immunities clause in subsequent cases, but its view of the due process clause gradually changed. In Hurtado v. California (1884), the Court rejected the contention that the Fifth Amendment right to indictment by a grand jury in serious criminal cases was part of Fourteenth Amendment due process. However, in Chicago, Burlington, and Quincy Railroad Co. v. Chicago (1897), the Court held that the Fifth Amendment right to just compensation when private property is taken for public use is part of the Fourteenth Amendment protection against property being taken without due process. The Court continued to view criminal procedure rights as less important in Maxwell v. Dow
It was some time after Twining, however, before the Court identified additional provisions of the first eight amendments to be incorporated into Fourteenth Amendment due process. In Gitlow v. New York
In 1932 the Court appeared to incorporate the right to counsel when it decided Powell v. Alabama, but it later ruled in Betts v. Brady
A few months after the DeJonge decision, the Court attempted to provide a rationale for its incorporation decisions. The case was Palko v. Connecticut
After Palko, the Court once again incorporated rights at a deliberate pace. It absorbed freedom to petition for redress of grievances in Hague v. Congress of Industrial Organizations
In Adamson v. California
Two years later, in Wolf v. Colorado
After the Mapp decision, the Court incorporated an additional seven rights in seventeen years. The Court first acted on the right to counsel in felony cases in Gideon v. Wainwright
The selective incorporation doctrine of Palko remains the majority view. However, Frankfurter’s case-by-case approach continues to enjoy considerable support. Justice John Marshall Harlan II, Chief Justice Warren Burger, and Justice Lewis F. Powell, Jr., supported the doctrine when they were on the Court. Chief Justice William H. Rehnquist succeeded them as the strongest proponent of the case-by-case approach on the Court, and the doctrine seems to enjoy some favor among several other Court members as well. Justice Black’s total incorporation approach and the total incorporation-plus doctrine of Murphy and Rutledge have had little support since such justices as Douglas and Arthur J. Goldberg left the Court.
Michael J. Perry’s We the People: The Fourteenth Amendment and the Supreme Court (New York: Oxford University Press, 2001) examines the charge that the Supreme Court has usurped the political process and examines each major Fourteenth Amendment issue. An excellent basic source on incorporation doctrine is Freedom and the Court: Civil Rights and Liberties in the United States by Henry J. Abraham and Barbara A. Perry (8th ed. Lawrence: University Press of Kansas, 2003). Horace Flack made a case for total incorporation of the first eight amendments in The Adoption of the Fourteenth Amendment (Baltimore, Md.: Johns Hopkins University Press, 1908), as did Michael Curtis in the more recent No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (Durham, N.C.: Duke University Press, 1986). Two scholars who agree in part with the total incorporation doctrine but reject some of the historical generalizations made by Justice Black and Professor Flack are Jacobus ten Broek, The Antislavery Origins of the Fourteenth Amendment (Berkeley: University of California Press, 1951) and J. B. James, The Framing of the Fourteenth Amendment (Urbana: University of Illinois Press, 1956). Raoul Berger’s Government by Judiciary: The Transformation of the Fourteenth Amendment (Cambridge, Mass.: Harvard University Press, 1977) forcefully rejects the total incorporation doctrine. Raold Y. Mykkeltvedt discusses the Frankfurter case-by-case approach in Nationalization of the Bill of Rights: Fourteenth Amendment Due Process and the Procedural Rights (Port Washington, N.Y.: National University Publications, 1983). In The Supreme Court and the Second Bill of Rights (Madison: University of Wisconsin Press, 1981), Richard C. Cortner tells the story of the cases in which the Court incorporated various rights into the Fourteenth Amendment. The Bill of Rights, a two-volume work edited by Thomas Tandy Lewis (Pasadena, Calif.: Salem Press, 2002), provides comprehensive coverage of the Bill of Rights, with articles on each of the amendments, the Constitution, the incorporation doctrine, and many other topics.
Adamson v. California
Barron v. Baltimore
Bill of Rights
Black, Hugo L.
Cardozo, Benjamin N.
Due process, substantive
Mapp v. Ohio
Palko v. Connecticut
Privileges and immunities