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The process of using the Fourteenth Amendment to apply the Bill of Rights to state governments is called "incorporation." The process the US Supreme Court has chosen to follow is called "selective incorporation," because the Bill of Rights is being applied to the states on Clause or Amendment at a time.

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"Incorporation," occurs by way of a decision of the Supreme Court of the United States. The 14th Amendment (among others) was ratified after the Civil War, and was intended to give constitutional muster to the reconstruction the American south. The "due process" clause of that Amendment provides that no person shall be denied due process of the laws of the United States. The Bill of Rights is among the laws of the United States.

Seen from this point of view, it would make sense to argue that all of the first ten Amendments was "incorporated" to the states upon ratification of the 14th Amendment. In fact, Justices Black and Douglass repeatedly made this argument. But for various reasons, that is not the approach the majority of the Court has taken. Rather, the Court has taken a step-by-step approach to incorporating the Bill of Rights. Today, most of the rights are incorporated (e.g., the First, Fourth, Fifth, and Sixth Amendments, and part of the Eighth Amendment). The Second Amendment was incorporated as a result of the Supreme Court's decision in McDonald v. City of Chicago, (2010); the Seventh Amendment remains unincorporated, and the Third Amendment only applies to states within one circuit.

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Dorcas Tremblay

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13y ago

Most sources cite either Chicago, Burlington & Quincy Railroad v. City of Chicago, 166 US 226 (1897) which upheld the Fifth Amendment Takings Clause, or Gitlow v. New York, 268 US 652 (1925) which held the Fourteenth Amendment required the States to adhere to the First Amendment.

The Fifth Amendment case, Chicago, Burlington and Quincy gets my vote as the original instance of incorporation, but textbooks often cite the First Amendment case, Gitlow.

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12y ago

The US Supreme Court has applied most of the first eight amendments in the Bill of Rights to the States through the doctrine of "selective incorporation" primarily via the Fourteenth Amendment Due Process Clause. Selective incorporation means the Bill of Rights has been applied to the states one clause at a time, in a piecemeal fashion, as warranted by cases decided in the Supreme Court. This process began in 1897 with the case Chicago, Burlington & Quincy Railroad v. City of Chicago (some sources cite Gitlow v. New York, (1925)), but the majority of the Bill of Rights was incorporated after 1925. The Seventh Amendment, as well as parts of the Third, Fifth and Eighth Amendments, remain unincorporated.

Further Information, Cases & Dates

The Bill of Rights was understood from its inception to regulate the actions of the federal government, and did not originally apply to the states. All states had their own constitutions, and all state constitutions included a bill of rights, many of which mirrored the language of the US Constitution, and some of which afforded greater freedoms.

In the 18th and 19th centuries, the Supreme Court often ruled in favor of state law when they were presented with cases that contradicted the first nine amendments (the 10th doesn't really confer any rights). For example, in Barron v. Baltimore, 32 US 243 (1833), the Court ruled the 5th Amendment Takings Clause, which wasn't written into the Maryland Constitution, did not apply to the city of Baltimore or, by extension, to the state of Maryland.

An 1866 charge against the state of Massachusetts in Pervear v. Massachusetts, 72 US 475 (1866) had similar results. In this case, the petitioner filed for relief under the 8th Amendment after the State sentenced him to 3 months prison with hard labor for failing to maintain his state liquor license. The Court again responded that the 8th Amendment did not apply to state government, but to federal legislation, only.

After the Civil War, the US government decided it needed a way to enable Reconstruction and supplement the Civil Rights Act of 1866, so Congress created the 14th Amendment, ratified in July 1868, which could have applied the Bill of Rights to the States via Total Incorporation, but the Supreme Court restricted its use.

Congress later attempted to provide constitutional protection against discrimination by businesses and individuals when it passed the Civil Rights Act of 1875, but the US Supreme Court declared the Act unconstitutional in the Civil Rights Cases, 109 US 3 (1883), holding Congress lacked authority to regulate private entities.

Some historians hold that the 14th Amendment required states to adhere to the Bill of Rights, in toto, while others claim the individual amendments were designed to be incorporated selectively. The Supreme Court has followed the doctrine of selective incorporation, upholding individual clauses within each Amendment in a piecemeal fashion, and rejecting other clauses as inapplicable.

The Seventh Amendment has not yet been incorporated, nor have portions of the Third and Eighth Amendments.

Amendment XIV, Section 1

"All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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; nor deny to any person within its jurisdiction the equal protection of the laws."

Cases that Upheld Incorporation

First Amendment (incorporated)

  • Everson v. Board of Education, 330 US 1 (1947) clarified the Establishment Clause.
  • Cantwell v. Connecticut, 310 US 296 (1940) held that the state couldn't impose restrictions on religious grounds.
  • Gitlow v. New York, 268 US 652 (1925) held that the Fourteenth Amendment required the States to adhere to the First Amendment.
  • Near v. Minnesota, 283 US 697 (1931) held that the Minnesota "gag law" violated freedom of the press.
  • De Jonge v. Oregon, 299 US 353 (1937) held that Oregon's criminal syndicalism law was unconstitutional.
  • NAACP v. Alabama, 357 US 449 (1958) Used Due Process Clause of Fourteenth Amendment to establish the right to expressive association, which is not specifically mentioned in the First Amendment.

Second Amendment (incorporated)

  • District of Columbia v. Heller, 554 US ___ (2008) determined District of Columbia handgun ban was a violation of respondent's Second Amendment right to own and bear arms.
  • McDonald v. City of Chicago, 561 US ___ (2010) held self-protection is a fundamental right, and incorporated the Second Amendment to the states.

Third Amendment (not fully incorporated)

  • 2nd Circuit ruling in Engblom v. Carey upheld Third Amendment rights, but decision only applies to Connecticut, New York, and Vermont. Decision only has persuasive authority over remainder of states.

Fourth Amendment (incorporated)

  • Mapp v. Ohio, 367 US 643 (1961) protected individuals against unreasonable search and seizure.
  • Aguilar v. Texas, 378 US 108 (1964) explicated warrant requirements.

Fifth Amendment (not fully incorporated)

  • Benton v. Maryland, 395 US 784 (1969) disallows trial for the same crime more than once.
  • Malloy v. Hogan, 378 US 1 (1964) upheld personal rights against self-incrimination.
  • Chicago, Burlington & Quincy Railroad v. City of Chicago, 166 US 226 (1897) upheld Takings Clause, prohibiting exercising eminent domain without fair compensation.
  • The Miranda (Miranda v. Arizona, 384 US 436) warning falls under the Fifth Amendment as a legal precaution, rather than a Constitutional mandate.

Sixth Amendment (incorporated)

  • Klopfer v. North Carolina, 386 US 213 (1967) upheld the right to a speedy trial.
  • In re Oliver, 333 US 257 (1948) upheld the right to a public trial.
  • Duncan v. Louisiana, 391 US 145 (1968) incorporated the Sixth Amendment right to trial by jury in criminal cases to the states.
  • In re Oliver, 333 US 257 (1948) upheld the right to notice of accusations.
  • Pointer v. Texas, 380 US 400 (1965) upheld right to confront adversary witnesses.
  • Washington v. Texas, 388 US 14 (1967) held subpoenas have to be issued for witness testimony.
  • Gideon v. Wainwright, 372 US 335 (1963) upheld right to assistance of counsel.

Seventh Amendment (not incorporated)

  • Right to jury trial in civil cases not imposed on states.

Eighth Amendment (partially incorporated)

  • Murphy v. Hunt, 455 US 478 (1982) petition for certiorari on case of excessive bail, dismissed as moot once defendant was sentenced. No other challenge.
  • Robinson v. California, 370 US 660 (1962) ruled that imprisonment for addiction (only) was cruel and unusual punishment.
  • Baze and Bowling v. Rees, 553 US ___ (2008) held that death by lethal injection did not constitute cruel and unusual punishment.

Ninth Amendment (Not triable)

Tenth Amendment (Does not address individual rights)

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13y ago

Primarily the Fourteenth Amendment Due Process Clause

The first attempt to incorporate the Bill of Rights to the states was based on the Fourteenth Amendment Powers of Congressional Enforcement (Section 5), followed by an attempt at using the Privileges and Immunities Clause. When these failed, incorporation was conducted via the Fourteenth Amendment Due Process and Equal Protection Clauses.

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9y ago

The due process clause of the Fourteenth Amendment is used by the courts to apply the Bill of Rights to the states.

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10y ago

incorporation

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13y ago

selective incorporation.

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Q: Which clause of the Fourteenth Amendment ended up being used by the courts to apply the Bill of Rights to the states?
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Continue Learning about American Government

What do courts try to determine before they rule on whether the government can limit First Amendment free speech rights in a certain situation?

whether one person's exercise of free speech would infringe on other citizens' rights


Why may government require that groups first obtain permits to practice or demonstrate?

The First Amendment of the BILL OF RIGHTS provides that "Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble."This provision applies to state government entities through the Due Process Clause of the Fourteenth Amendment. Though neither the federal Constitution nor any state constitution specifically protects rights of association, the United States Supreme Court and other courts have extended assembly rights to include rights of association.Rights to free speech and assembly are not absolute under the relevant JURISPRUDENCE. Government entities may restrict many types of speech without violating First Amendment protections. Many of the Supreme Court's First Amendment cases focus on two main questions: first, whether the restriction on speech was based on the content of the speech; and second, whether the speech was given in a traditional public forum or elsewhere. Some questions focus exclusively on the actual speech, rather than on aspects of the right to assembly. Other questions contain aspects of both the right to free speech and the right to assemble peacefully. Cases addressing free speech plus some conduct in the exercise of assembly rights often pose complex questions, since either the speech rights or the assembly rights may not protect the parties in these types of cases.Since the courts take into consideration such a variety of factors when determining whether a particular speech or whether a particular assemblage is protected by the First Amendment, it is difficult to provide a concise definition of rights of assembly. Even in areas where a government entity may restrict speech or assembly rights, courts are more likely to find a violation of the First Amendment if speech or assembly is banned completely. Some restrictions merely involve the application for a permit or license to assemble, such as obtaining a license to hold a parade in a public street. Other time, place, and/or manner restrictions may also apply.


What rights does amendment 7 give to citizens?

The 7th amendment gives a citizen the right to a jury trial in certain civil cases, and prevents courts from overturning a jury's findings of fact. It also guarantees a minimum of 6 members for a jury in a civil trial.


What are rights that are not explicity listed in the Constitution but are recognized by courts?

Peripheral Rights


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Related questions

Which clause of the fourteenth amendment ended up being used by the courts to apply the bill of rights to the the states?

The due process clause of the Fourteenth Amendment is used by the courts to apply the Bill of Rights to the states.


Which clause of the fourteenth amendment ended up being used by the court to apply the bill of right to the states?

The due process clause of the Fourteenth Amendment is used by the courts to apply the Bill of Rights to the states.


Which clause 4th amendment ended up being used by the courts to apply the bill of rights to the states?

The due process clause


How primarily does Chief Justice earl warren support the supreme courts?

He cites the Fourteenth Amendment and explains its purpose.


Is the Establishment Clause of the 1st Amendment violated by money saying 'In God We Trust'?

The courts have ruled that it does not.


What body was given the power to make sure the fourteenth amendment was enforced?

Federal courts assure the COnstitution is obeyed by governments.


what is the importance of the 14th amendment and the supreme courts interpretation of how the bill of rights applies throughout the country?

Share what is the importance of the 14th amendment and the supreme courts interpretation of how the bill of rights applies throughout the country?


Does the First Amendment apply to the States?

The First Amendment does not directly apply to the states; however, the courts have ruled that the states are obligated to submit to the First Amendment because of the equal protection clause of the 14th Amendment.


Can a Florida municipality require someone to own land before they can run for city commissioner?

It has been determined in Federal courts that the ballot access restriction is not rationally related to any legitimate governmental interest and violates the equal protection clause of the Fourteenth Amendment. 790 F.2d 328.


Why did the founding fathers include the eighth amendment?

The Bill of Rights were written to give the individual rights from the government. The 8th Amendment was added because it protects the individual from excessive actions by the courts. Specifically the 8th Amendment prevents the courts from imposing excessive bail or fines, or imposing cruel and unusual punishments.


Who created the sixth amendment?

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trail, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witness in his favor, and to have the Assistance of Councel for his defence." Amendment VI (the Sixth Amendment) of the United States Constitution sets forth rights related to criminal prosecutions in federal courts. The Supreme Court has ruled that the principal rights guaranteed by this amendment are so fundamental and important that they are also protected in state proceedings by the Fourteenth Amendment's Due Process Clause.


Who was responsible for bringing freedom of the press to the courts?

Freedom of the press is protected by the First Amendment of the Constitution. The right to free speech without restraint was upheld in the Supreme Court case of Branzburg v. Hayes. In 1931, Near v. Minnesota used the Fourteenth Amendment to include Freedom of the Press in state courts as well. .