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Essentials: Notes on Incorporation

In an 1833 case involving wharf rights in Baltimore, Barron v. City of Baltimore, 32 U.S. 243
(1833), the Supreme Court (in an opinion by Justice Marshall) held that the bill of rights
applied only as against the federal government, not the states.

The 14th Amendment theoretically could have changed the rule of Barron v. Baltimore, but,as
you saw, the Reconstruction-era Supreme Court rejected that argument in The Slaughter-
House Cases, 83 U.S. 36 (1873).

Ssubsequent doctrinal developments have imposed the substance of the original Bill of Rights
on the states through a process known as “incorporation” through the Due Process clause.

In Powell v. Alabama, 287 U.S. 45 (1932), the Court found that a state’s denial of counsel in a
capital case denied due process, essentially applying the Sixth Amendment right to counsel to
the states in capital cases. After that case, there were a series of debates about which liberties
the Due Process Clause protected.

Justices Black and Douglas embraced the position of “total incorporation,” under which all of
the rights in the Bill of Rights are included in the Due Process Clause. Adamson v. California,
332 U.S. 46, 71-72 (1947) (Black, J., dissenting).

Justice Cardozo and Frankfurter argued for selective incorporation. Justice Cardozo argued the
Due Process Clause included “principles of justice so rooted in the tradition and conscience of
our people as to be ranked fundamental” and that were therefore “implicit in the concept of
ordered liberty.” Palko v. Connecticut, 302 U.S. 319, 325-26 (1937).

Justice Frankfurter said due process precludes practices that “offend those canons of decency
and fairness which express the notions of justice of English-speaking people.” Adamson,
332U.S. at 67 (Frankurter, J., concurring).

Duncan v. Louisiana, 391 U.S. 145 (1968), illustrates the modern approach to “selective
incorporation.” The Court explained: “The question is whether given this kind of system a
particular procedure is fundamental—whether, that is, a procedure is necessary to an Anglo-
American regime of ordered liberty.”

Using this test, the Court has incorporated virtually every provision of the Bill of Rights as
against the States. Only three provisions have never been incorporated: (1) the Third
Amendment (no Third Amendment case has ever been before the Supreme Court); (2) the Fifth
Amendment’s right to a grand jury indictment in criminal cases does not apply to the states
(Hurtado v. California, 110 U.S. 516 (1884)); (3) the Seventh Amendment right to jury trial in
civil cases does not to apply to the states (Minneapolis & St. Louis Railroad Co. v. Bombolis,
241 U.S. 211 (1916)).

Where a provision of the Bill of Rights applies to the states, generally its content is identical as
when it is applied to the federal government. Thus, in Wallace v. Jaffree, the Court said that it
is “firmly embedded in our constitutional jurisprudence that the several States have no greater
power to restrain the individual freedoms protected by the First Amendment than does the
Congress of the United States.” 472 U.S. 38, 48-49. Similarly, the Court has said that “the
guarantees of the First Amendment, the prohibition of unreasonable searches and seizures of
the Fourth Amendment, and the right to counsel guaranteed by the Sixth Amendment, are all
to be enforced against the States under the Fourteenth Amendment according to the same
standards that protect those personal rights against federal encroachment.” Malloy v. Hogan,
378 U.S. 1, 10 (1964). The Court “rejected the notion that the Fourteenth Amendment applies
to the states only a ‘watered-down, subjective version of the individual guarantees of the Bill of
Rights.” Id.

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