Incorporation doctrine

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[case]Barron v. Baltimore[Barron v. Baltimore] (1833), the Supreme Court ruled that rights enumerated in the Bill of Rights restrained the actions of the United States government, not the actions of the state governments. Specifically, the Court held that the eminent domain clause of the Fifth Amendment did not apply to a dispute over whether the city of Baltimore had taken Barron’s property for public use without just compensation.Bill of RightsBill of Rights

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.

(Collection of the Supreme Court of the United States)

After the passage of the Fourteenth AmendmentFourteenth Amendment in 1868, lawyers began to seek ways to use its provisions to undermine Barron. The two provisions that lent themselves to this effort were the privileges or immunitiesPrivileges or immunities clause and the due process clause. These two clauses appear next to one another in the amendment: “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.”

In the Slaughterhouse Cases[case]Slaughterhouse Cases[Slaughterhouse Cases] (1873), the attorney for the petitioners argued that engaging in a lawful and useful occupation was a privilege or immunity of U.S. citizenship and an aspect of liberty or property that could not be taken away without due process of law. At issue was an act of the Louisiana legislature creating a corporation and bestowing on that corporation a monopoly over the New Orleans slaughterhouse industry. Butchers disadvantaged by the law asked the courts to declare it unconstitutional. Failing to get a favorable result in the state courts, they appealed to the U.S. Supreme Court.

Justice Samuel F. Miller wrote an opinion that differentiated between privileges or immunities of U.S. citizenshipCitizenship and privileges or immunities of state citizenship. Only the former were protected by the Fourteenth Amendment, and engaging in a lawful and useful occupation was not among them; it was an aspect of state, not national, citizenship. In a similar vein, Justice Miller argued that due process protected persons against takings of life, liberty, or property by improper procedures but did not place limitations on the substance of laws themselves.

The Due Process Clause

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[case]Maxwell v. Dow[Maxwell v. Dow] (1900) and Twining v. New Jersey (1908). In Maxwell, the Court found trial by jury not to be incorporated into Fourteenth Amendment due process, and in Twining, the justices reached a similar conclusion with respect to the immunity against compulsory self-incrimination. In the latter case, the Court did recognize that it was possible that some of the rights safeguarded by the first eight amendments might be part of the concept of due process and therefore be protected against state action.

Additional Incorporations

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[case]Gitlow v. New York[Gitlow v. New York] (1925), the Court stated that it assumed that freedom of speechSpeech, freedom of and of the press were among the liberties protected by the Fourteenth Amendment’s due process clause, but nevertheless upheld Benjamin Gitlow’s conviction for violating the New York law prohibiting language that advocated overthrow of the government by unlawful means. The Court subsequently held unconstitutional a conviction under a similar law in Fiske v. Kansas[case]Fiske v. Kansas[Fiske v. Kansas] (1927) and overturned a state restriction on the press in Near v. Minnesota (1931), thereby confirming what it had assumed in Gitlow.

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[case]Betts v. Brady[Betts v. Brady] (1942) that the Powell decision was limited to capital offenses. In a case reminiscent of Gitlow, the Court said in Hamilton v. Board of Regents of the University of California[case]Hamilton v. Board of Regents of the University of California[Hamilton v. Board of Regents of the University of California] (1934) that freedom of religion was part of the concept of due process, but that a religious pacifist was not entitled to an exemption from the military training required by the university. The Court did clearly hold in DeJonge v. Oregon[case]DeJonge v. Oregon[DeJonge v. Oregon] (1937) that the right to assemble peacefully was implicit in due process. This right barred the state of Oregon from convicting Dirk DeJonge for attending a peaceful meeting sponsored by the CommunistCommunism Party.

A few months after the DeJonge decision, the Court attempted to provide a rationale for its incorporation decisions. The case was Palko v. Connecticut[case]Palko v. Connecticut[Palko v. Connecticut] (1937). Frank Palko had been retried and convicted of first-degree murder after his conviction for second-degree murder had been overturned by the state supreme court. Prosecutors argued, and the state high court agreed, that the trial court judge had erred in excluding Palko’s confession to robbery and murder in the first trial. Palko’s attorney argued that the two trials constituted double jeopardyDouble jeopardy in violation of the Fifth Amendment, as incorporated by the due process clause of the Fourteenth. Justice Benjamin N. Cardozo wrote for the Court that only those rights “implicit in the concept of ordered liberty” were part of the notion of due process. These rights were so important “that neither liberty nor justice would exist if they were sacrificed.” Justice Cardozo did not find the sort of double jeopardy involved in the Palko case inconsistent with the nation’s fundamental principles of justice, and double jeopardy was, accordingly, not incorporated.

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[case]Hague v. Congress of Industrial Organizations[Hague v. Congress of Industrial Organizations] (1939). Cantwell v. Connecticut[case]Cantwell v. Connecticut[Cantwell v. Connecticut] (1940) confirmed the Hamilton statement that freedom of religion had been incorporated. The Court assumed that establishment of religion and the prohibition of cruel and unusual punishment were incorporated in 1947, although neither case, Everson v. Board of Education of Ewing Township and Louisiana ex rel. Francis v. Resweber respectively, resulted in state action being overturned. The Court confirmed its assumptions in these two cases in Illinois ex rel. McCollum v. Board of Education[case]Illinois ex rel. McCollum v. Board of Education[Illinois ex rel. McCollum v. Board of Education] (1948), which struck down a religious education program conducted on school property as a violation of the establishment clause, and Robinson v. California[case]Robinson v. California[Robinson v. California] (1962), which found a law that made being a drug addict a status crime, to be cruel and unusual punishment. In 1948 the Court incorporated the right to a public trial in the case of In re Oliver and the requirement of due notice of the charges against a criminal defendant in Cole v. Arkansas.

An Alternate View

In Adamson v. California[case]Adamson v. California[Adamson v. California] (1947), the Court again confronted the matter of a rationale for its incorporation doctrine. In this case, the Court once again held that the immunity against self-incrimination was not a part of due process of law. In a lengthy dissent, Justice Hugo L. Black argued that the framers of the Fourteenth Amendment had intended to incorporate all of the provisions of the first eight amendments into the Fourteenth. The Court rejected his views by a 5-4 vote. Justices Frank Murphy and Wiley B. Rutledge, Jr., agreed with Black, but contended that the Court should not restrict the meaning of due process to the rights contained in the first eight amendments. Black, a textualist, wanted to limit the meaning of due process in this way. Justice William O. Douglas agreed with Black in Adamson, but in later cases adopted the Murphy-Rutledge position.

Two years later, in Wolf v. Colorado[case]Wolf v. Colorado[Wolf v. Colorado] (1949), Frankfurter put forward an alternative view of what incorporation meant. At issue was the Fourth Amendment concept of unreasonable search and seizure. Frankfurter conceded that this right was part of due process but argued that only the essential core of the right not the specific meanings of that right worked out by the federal courts for use in cases involving the U.S. government restrained state action. Therefore the exclusionary rule, which meant that federal judges could not admit criminal evidence seized in violation of the Fourth Amendment, did not apply to the states. Instead, the courts would have to determine on a case-by-case basis whether states had violated the essential core meaning of the Fourth Amendment. Justice Black referred to this doctrine as applying a “watered down version” of the Bill of Rights to the states. The Frankfurter position dominated the Court in the 1950’s, especially in criminal procedure matters such as search and seizure cases. Use of the case-by-case approach was brought to an end by Mapp v. Ohio[case]Mapp v. Ohio[Mapp v. Ohio] (1961), in which the Court held that states were obliged to follow the exclusionary rule.

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[case]Gideon v. Wainwright[Gideon v. Wainwright] (1963) and expanded this right to include misdemeanors where a jail term was possible in Argersinger v. Hamlin[case]Argersinger v. Hamlin[Argersinger v. Hamlin] (1972). Next it incorporated the immunity against self-incrimination in Malloy v. Hogan[case]Malloy v. Hogan[Malloy v. Hogan] (1964) and the right to confront and cross-examine adverse witnesses in Pointer v. Texas[case]Pointer v. Texas[Pointer v. Texas] (1965). The Court incorporated the right to a speedy trial in Klopfer v. North Carolina[case]Klopfer v. North Carolina[Klopfer v. North Carolina] (1967) along with the right to compulsory process to obtain witnesses in Washington v. Texas[case]Washington v. Texas[Washington v. Texas] (1968). It followed with the right to a jury trial in Duncan v. Louisiana[case]Duncan v. Louisiana[Duncan v. Louisiana] (1968) and completed its incorporation jurisprudence with double jeopardy in Benton v. Maryland[case]Benton v. Maryland[Benton v. Maryland] (1969). Only the Second Amendment right to keep and bear arms, the Third Amendment right against quartering soldiers, the Fifth Amendment right of grand jury indictment, the Seventh Amendment right to a jury trial in civil cases, and the Eighth Amendment protection against excessive bail and fines remain beyond the scope of due process.

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.

Further Reading

  • 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

Fourteenth Amendment

Frankfurter, Felix

Fundamental rights

Mapp v. Ohio

Palko v. Connecticut

Privileges and immunities

Slaughterhouse Cases