Incorporation (application of the Bill of Rights to states) -- "Fundamental" Rights

Incorporation of the Bill of Rights







The incorporation of the Bill of Rights (or incorporation for short) is the process by which American courts have applied portions of the U.S. Bill of Rights to the states. Prior to the 1890s, the Bill of Rights was held only to apply to the federal government. Under the incorporation doctrine, most provisions of the Bill of Rights now also apply to the state and local governments, by virtue of the due process clause of the Fourteenth Amendment of the Constitution.

Prior to the ratification of the Fourteenth Amendment and the development of the incorporation doctrine, the Supreme Court in 1833 held in Barron v. Baltimore that the Bill of Rights applied only to the federal, but not any state governments. Even years after the ratification of the Fourteenth Amendment the Supreme Court in United States v. Cruikshank, still held that the First and Second Amendment did not apply to state governments. However, beginning in the 1890s, a series of United States Supreme Court decisions interpreted the Fourteenth Amendment to "incorporate" most portions of the Bill of Rights, making these portions, for the first time, enforceable against the state governments.




Specific amendments

Many of the provisions of the First Amendment were applied to the States in the 1930s and 1940s, but most of the procedural protections provided to criminal defendants were not enforced against the States until the Warren Court of the 1960s, famous for its concern for the rights of those accused of crimes, brought state standards in line with federal requirements. The following list enumerates, by amendment and individual clause, the Supreme Court cases that have incorporated the rights contained in the Bill of Rights. (The Ninth Amendment is not listed; its wording indicates that it "is not a source of rights as such; it is simply a rule about how to read the Constitution." The Tenth Amendment is also not listed; by its wording, it is a reservation of powers to the states and to the people.)

Amendment I

Guarantee against establishment of religion

Guarantee of free exercise of religion

Guarantee of freedom of speech

Guarantee of freedom of the press

Guarantee of freedom of assembly

Right to petition for redress of grievances

Guarantee of freedom of expressive association

  • This right, though not in the words of the first amendment, was first mentioned in the case NAACP v. Alabama, and was at that time applied to the states.

Amendment II

Right to keep and bear arms

Amendment III

Freedom from quartering of soldiers

In 1982, the Second Circuit applied the Third Amendment to the states in Engblom v. Carey. This is a binding authority over Connecticut, New York, and Vermont, but is only a persuasive authority over the remainder of the United States.

The Tenth Circuit has suggested that the right is incorporated because the Bill of Rights explicitly codifies the "fee ownership system developed in English law" through the Third, Fourth, and Fifth Amendments, and the Fourteenth Amendment likewise forbids the states from depriving citizens of their property without due process of law. See United States v. Nichols, 841 F.2d 1485, 1510 n.1 (10th Cir. 1988).

Amendment IV

Unreasonable search and seizure

  • This right has been incorporated against the states, along with the remedy of exclusion of unlawfully seized evidence, by the Supreme Court's decision in Mapp v. Ohio, 367 U.S.643 (1961). In Mapp, the Court overruled Wolf v. Colorado, 338 U.S.25 (1949), in which the Court had ruled that while the Fourth Amendment applied to the states (meaning that they were bound not to engage in unreasonable searches and seizures), the exclusionary rule did not (meaning that they were free to fashion other remedies for criminal defendants whose possessions had been illegally seized by the police in violation of the Fourth Amendment).

Warrant requirements

  • The various warrant requirements have been incorporated against the states. See Aguilar v. Texas, 378 U.S.108 (1964).
  • The standards for judging whether a search or seizure undertaken without a warrant was "unreasonable" also have been incorporated against the states. See Ker v. California, 374 U.S.23 (1963).

Amendment V

Right to indictment by a grand jury

  • This right has been held not to be incorporated against the states. See Hurtado v. California, 110 U.S. 516 (1884). Because many state constitutions provide for indictment by grand jury, at least in the case of serious crimes, it is unlikely that the Supreme Court will revisit the decision not to incorporate this right against the states.

Protection against double jeopardy

Constitutional privilege against self-incrimination

  • This right has been incorporated against the states. See Malloy v. Hogan, 378 U.S.1 (1964).
  • A note about the Miranda warnings: The text of the Fifth Amendment does not require that the police, before interrogating a suspect whom they have in custody, give him or her the now-famous Miranda warnings. Nevertheless, the Court has held that these warnings are a necessary prophylactic device, and thus required by the Fifth Amendment by police who interrogate any criminal suspect in custody, regardless of whether he or she is ultimately prosecuted in state or federal court.

Protection against taking of private property without just compensation

Amendment VI

Right to a speedy trial

Right to a public trial

Right to trial by impartial jury

  • This right has been incorporated against the states. See Duncan v. Louisiana, 391 U.S.145 (1968). However, the size of the jury, as well as the requirement that it unanimously reach its verdict, vary between federal and state courts. Even so, the Supreme Court has ruled that a jury in a criminal case may have as few as six members. If there are twelve, only nine jurors need agree on a verdict. Furthermore, there is no right to a jury trial in juvenile delinquency proceedings held in state court. See McKeiver v. Pennsylvania, 403 U.S.528 (1971).

Right to notice of accusations

Right to confront adverse witnesses

Right to compulsory process (subpoenas) to obtain witness testimony

Right to assistance of counsel

  • This right has been incorporated against the states. See Gideon v. Wainwright, 372 U.S.335 (1963). In subsequent decisions, the Court extended the right to counsel to any case in which a jail sentence is imposed.

Amendment VII

Right to jury trial in civil cases

Re-Examination Clause

Amendment VIII

Protections against "excessive" bail and "excessive" fines

  • These provisions have not been held to be incorporated against the states. In Murphy v. Hunt, 455 U.S.478 (1982), the Court held that a pretrial detainee's suit under 42 U.S.C. § 1983 that he was being unconstitutionally denied bail, in violation of the Eighth Amendment, was rendered moot when he was convicted in a Nebraska court. The conclusion that the § 1983 case had been moot from the moment of the defendant's conviction allowed the Court to avoid deciding whether the Eighth Amendment protection against "excessive" bail applied to prosecutions in state court. In any event, all state constitutions provide for a similar right, and so the most frequent mechanism for challenging the amount of bail, or the complete denial of bail, remains state law.

Protection against "cruel and unusual punishments"

  • This provision has been incorporated against the states. See Robinson v. California, 370 U.S.660 (1962). This holding has led the Court to suggest, in dicta, that the excessive bail and excessive fines protections have also been incorporated. See Baze v. Rees, 128 S. Ct. 1520, 1529 (2008).