CHAPTER 3 INCORPORATION OF THE BILL OF RIGHTS

• Jurisdiction: United States

Chapter 3 INCORPORATION OF THE BILL OF RIGHTS

§ 3.01 INCORPORATION: OVERVIEW¹

[A] Nature of the Issue

The first ten amendments to the United States Constitution — the Bill of Rights — were adopted contemporaneously with the ratification of the Constitution. These provisions were designed to limit the power of the federal government. They were not intended as restrictions on the actions of state government.² The vast majority of criminal prosecutions, however, originate in state courts as the result of criminal investigations conducted by state or local police officers. Consequently, the provisions of the Bill of Rights that pertain to criminal procedure — primarily, the Fourth, Fifth, Sixth, and Eighth Amendments — do not directly apply in the vast majority of criminal cases arising in this country.

The Fourteenth Amendment, adopted in 1868, imposes limits on state action. Section 1 of that amendment limits the states in three ways:

No State shall [1] make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; [2] nor shall any State deprive any person of life, liberty, or property, without due process of law; [3] nor deny to any person within its jurisdiction the equal protection of the laws.³

The relationship between the Fourteenth Amendment and the Bill of Rights has been vigorously disputed. The legal battle, commonly called the "incorporation debate," centers on the second clause of section 1, namely, the Due Process Clause.⁴ The essential question is this: To what extent does the Fourteenth Amendment Due Process Clause "incorporate" (or "absorb") the Bill of Rights and, as a consequence, impose upon the states the same restrictions the Bill of Rights imposes on the federal government? As discussed below, some courts and scholars believe that the Fourteenth Amendment incorporates all of the Bill of Rights, while others believe that it is does not. A related question is whether the Fourteenth Amendment guarantees any rights not enumerated in the Bill of Rights.

[B] Importance of the Debate

The incorporation debate is important for several reasons. First, the extent to which individuals are protected from overreaching by agents of the state depends in large measure on the extent to which the Fourteenth Amendment incorporates the Bill of Rights.⁵ At one extreme, if none of the rights found in the Bill of Rights apply to the states, citizens may be subjected, for example, to warrantless invasions of the home by local police, coercive interrogation techniques, and felony trials without the assistance of counsel.⁶ On the other hand, if the Due Process Clause incorporates the Bill of Rights in its entirety, the latter charter becomes a national code of criminal procedure — federal and state action would be identically restricted.

Second, as the latter observation suggests, values of federalism are at stake in the incorporation debate. The broader the scope of the Fourteenth Amendment Due Process Clause, the less free are the states to develop their own rules of criminal procedure, and to adapt them to an individual state's particular social and political conditions.

Third, the incorporation debate raises important questions regarding the proper role of the judiciary in the enforcement of constitutional rights. In particular, if the Due Process Clause of the Fourteenth Amendment incorporates some, but not all, of the Bill of Rights, then judges must use some standard to decide which doctrines apply against the state and which do not, thereby increasing the risk that judges will make these determinations based on personal policy predilections rather than on a legitimate and principled constitutional basis.

§ 3.02 INCORPORATION THEORIES

[A] Full Incorporation

According to Justice Hugo Black, the judicial architect and chief proponent of so-called "full" or "total" incorporation, "one of the chief objects that the provisions of the [Fourteenth] Amendment's first section, separately, and as a whole, were intended to accomplish was to make the Bill of Rights, applicable to the states."⁷ In other words, the Fourteenth Amendment in general, and the Due Process Clause in particular, incorporates all of the rights included in the Bill of Rights, nothing more but also nothing less.

[B] Fundamental Rights

"Fundamental rights" doctrine gained ascendency in the 1930s with the influential support of Justices Benjamin Cardozo⁸ and Felix Frankfurter.⁹ The essence of this doctrine is that the Fourteenth Amendment "neither comprehends the specific provisions by which the founders deemed it appropriate to restrict the federal government nor is it confined to them. The Due Process Clause . . . has an independent potency . . . ."¹⁰

According to fundamental rights advocates, the Due Process Clause does not incorporate any of the provisions of the Bill of Rights. Instead, the Fourteenth Amendment Due Process Clause requires states to honor "'principle[s] of justice so rooted in the traditions and consciences of our people as to be ranked as fundamental.' "¹¹ These fundamental rights "might indeed happen to overlap wholly or in part with some of the rules of the Bill of Rights, but [they] bear no logical relationship to those rules."¹²

Notice that this means that a right may be included in the Bill of Rights (and thus be protected against encroachment by the federal government) and yet not be deemed fundamental (and, therefore, not be protected against state overreaching). By the same token, a right may be fundamental, and yet not expressly protected by the Bill of Rights. Thus, the Fourteenth Amendment potentially provides both more and less than the Bill of Rights.

Over the years, the Supreme Court has articulated in a variety of ways the test by which the "fundamentalness" of a right is determined. These have included whether the right "is among those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions; whether it is basic in our system of jurisprudence; . . . whether it is a fundamental right, essential to a fair trial . . . [, and whether it] is fundamental to the American scheme of justice."¹³

[C] Full-Incorporation-Plus

Justices Frank Murphy, Wiley Rutledge, and William Douglas posited the broadest interpretation of the Fourteenth Amendment. According to these justices, the Due Process Clause incorporates the Bill of Rights in its entirety (full incorporation), as well as any fundamental rights that fall outside the express language of the Constitution (a component of fundamental rights doctrine).¹⁴

[D] Selective Incorporation

Selective incorporation includes features of both fundamental rights theory and total incorporation, without following the logic of either doctrine. According to one judicial critic, it represents "an uneasy and illogical compromise"¹⁵ between the two doctrines.

Selective incorporationists agree with fundamental rights theorists that not all rights included in the Bill of Rights are inevitably absorbed by the Fourteenth Amendment. On the other hand, contrary to fundamental rights theory, and more in keeping with full incorporation, selective incorporationists believe that once a right is deemed to be fundamental, it is "applicable to the States with all the subtleties and refinements born of...