Civil Rights and Civil Liberties – The Strange Case of Incorporation

Rights & Liberties


Incorporation, which is the process of applying provisions of the Bill of Rights against the states in the same way that they have always applied against the national government, is a central feature of the larger story of the development of Civil Rights & Civil Liberties in the United States.

We have to remember that the Bill of Rights starts off with “Congress shall make no law,” implying that the subsequent rights limit the national, not the state governments. The ideas of Incorporation of the Bill of Rights start off in the early republic but are uniformly rejected. Chief Justice John Marshall, as you’ll read, quickly disposed of the issue by saying that while applying the Bill of Rights to the States is an interesting idea, it’s nevertheless incorrect.

It would not be until the ratification of the 14th Amendment in 1868, though, that those who supported applying the Bill of Rights to the states believed that they finally had a textual provision that would help them: The 14th Amendment, passed during Reconstruction, announced three limitations against state governments: states now could not deny to their citizens due process of law; could not deny to them their privileges or immunities, and could not deny to them the equal protection of the law. This process was fraught with difficulties and challenges, and even to this day not all of the provisions of the Bill of Rights are applied against the states.

The 3rd Amendment is not applied; nor is the grand jury requirement in civil cases in the 7th Amendment; nor is the excessive bail guarantee of the 8th. In fact, the current court, and every court since, still does not accept the idea of full incorporation. But there have been four approaches that the court has taken.

One is Total incorporation: some will argue that incorporating the Bill of Rights against the states is not only fair, but an important way to limit judicial activism. CR/CL is at its most controversial when justices announce new rights or interpret existing rights in different ways. By incorporating the Bill of Rights completely, with no exceptions, some, like Justice Hugo Black, believed it would prevent the Court from committing the sin of the previous Lochner Court, where they read new provisions into the Constitution that were not explicitly enumerated.

Others have a Selective Incorporation/Preferred Freedoms Model: in this understanding, which a majority of every Court has adopted, only those provisions of the Bill of Rights that are deemed “fundamental” and rooted in a concept of ordered liberty, are applied against the states. Derived from the Palko case in 1937 that you’ll read the Justices simply ask which provisions in the Bill of Rights are so fundamental to an ordered society that if we took them away the entire system would fall apart. So, for example, Free Speech falls into this category, but jury trials in civil cases do not.

Another approach is Fundamental Fairness, which was made famous by Justice Frankfurter in the Rochin case. This is pretty similar to Selective Incorporation Model. This is another approach and one that is similar to the selective incorporation model. If you remember in Rochin, police involuntarily pumped the stomach of a suspect that they believed had just swallowed drugs. Frankfurter believed that while this was unconstitutional, it wasn’t because the Bill of Rights was applied against the states, but because the actions of the police “shocked the conscience” and were fundamentally unfair.

Finally, there is the Selective incorporation plus other fundamental rights approach. Here, the Court selectively applies provisions of the Bill of Rights based upon the “ordered liberty” model, but also would include other unremunerated rights that would apply to the states. So as you read these cases, think about these points: While Incorporation is not mentioned in the text of the Constitution, most of us think that the Bill of Rights should limit state governments in the same way they limit the federal government.


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