Background The United States Bill of Rights is the first ten
amendments to the
United States Constitution. Proposed following the oftentimes bitter 1787–88 battle over ratification of the United States Constitution, and crafted to address the objections raised by
Anti-Federalists, the Bill of Rights amendments add to the Constitution specific guarantees of personal freedoms and
rights, clear limitations on the government's power in judicial and other proceedings, and explicit declarations that all powers not specifically delegated to Congress by the Constitution are reserved for the states or the
people. The concepts enumerated in these amendments are built upon those found in several earlier documents, including the
Virginia Declaration of Rights and the English
Bill of Rights 1689, along with earlier documents such as
Magna Carta (1215). Although
James Madison's proposed amendments included a provision to extend the protection of some of the Bill of Rights to the states, the amendments that were finally submitted for ratification applied only to the federal government. In the 1833 case of
Barron v. Baltimore, the
Supreme Court of the United States held that the Bill of Rights did not apply to state governments; such protections were instead provided by the
constitutions of each state. After the
Civil War, Congress and the states ratified the
Fourteenth Amendment, which included the
Due Process Clause and the
Privileges or Immunities Clause. While the
Fifth Amendment had included a due process clause, the due process clause of the Fourteenth Amendment crucially differed from the Fifth Amendment in that it explicitly applied to the states. The Privileges or Immunities Clause also explicitly applied to the states, unlike the
Privileges and Immunities Clause of
Article IV of the Constitution. In the
Slaughter-House Cases (1873), the Supreme Court ruled that the Privileges or Immunities Clause was not designed to protect individuals from the actions of state governments. In
Twining v. New Jersey (1908), the Supreme Court acknowledged that the Due Process Clause might incorporate some of the Bill of Rights, but continued to reject any incorporation under the Privileges or Immunities Clause.
Incorporation The doctrine of incorporation has been law since Presser v. Illinois, 116 U.S. 252 (1886). At 116 U.S. 253 the Supreme Court opined "The provision in the Fourteenth Amendment to the Constitution that "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" does not prevent a state from passing such laws to regulate the privileges and immunities of its own citizens as do not abridge their privileges and immunities as citizens of the United States." The Fifth Amendment Takings Clause was specifically incorporated in
Chicago, Burlington and Quincy Railroad v. City of Chicago (1897) in which the Supreme Court appeared to require some form of
just compensation for property appropriated by state or local authorities (although there was a state statute on the books that provided the same guarantee) or, more commonly, to
Gitlow v. New York (1925), in which the Court expressly held that States were bound to protect freedom of speech. Since that time, the Court has steadily incorporated most of the significant provisions of the Bill of Rights. Provisions that the Supreme Court has not specifically incorporated include the
Fifth Amendment right to an indictment by a
grand jury, and the
Seventh Amendment right to a
jury trial in civil lawsuits. Incorporation applies both procedurally and substantively to the guarantees of the states. Thus, procedurally, only a jury can convict a defendant of a serious crime, since the Sixth Amendment jury-trial right has been incorporated against the states; substantively, for example, states must recognize the First Amendment prohibition against a state-established religion, regardless of whether state laws and constitutions offer such a prohibition. The Supreme Court declined to apply new procedural constitutional rights retroactively against the states in criminal cases in
Teague v. Lane, . Rep.
John Bingham, the principal framer of the Fourteenth Amendment, advocated that the Fourteenth applied the first eight Amendments of the Bill of Rights to the States. The
U.S. Supreme Court subsequently declined to interpret it that way, despite the dissenting argument in the 1947 case of
Adamson v. California by Supreme Court Justice
Hugo Black that the framers' intent should control the Court's interpretation of the Fourteenth Amendment (he included a lengthy appendix that quoted extensively from Bingham's congressional testimony). Although the
Adamson Court declined to adopt Black's interpretation, the Court during the following twenty-five years employed a doctrine of selective incorporation that succeeded in extending against the
States almost all of the protections in the Bill of Rights, as well as other, unenumerated rights. The
Bill of Rights thus imposes legal limits on the powers of governments and acts as an anti-majoritarian/minoritarian safeguard by providing deeply entrenched legal protection for various civil liberties and fundamental rights. The Supreme Court for example concluded in the
West Virginia State Board of Education v. Barnette (1943) case that the founders intended the
Bill of Rights to put some rights out of reach from majorities, ensuring that some liberties would endure beyond political majorities. As the Court noted, the idea of the Bill of Rights "was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts." The 14th Amendment has vastly expanded
civil rights protections and is cited in more litigation than any other amendment to the U.S. Constitution. A dissenting school of thought championed by
Justices Hugo Black and
William O. Douglas supported that incorporation of specific rights, but urged incorporation of all specific rights instead of just some of them. Black was for so-called mechanical incorporation, or total incorporation, of Amendments 1 through 8 of the Bill of Rights. Black felt that the Fourteenth Amendment required the States to respect all of the enumerated rights set forth in the first eight amendments, but he did not wish to see the doctrine expanded to include other, unenumerated "
fundamental rights" that might be based on the
Ninth Amendment. The
Tenth Amendment was excluded from total incorporation as well, due to it already being patently concerned with the power of the states. This view was again expressed by Black in his concurrence in
Duncan v. Louisiana citing the Fourteenth Amendment's Privileges or Immunities Clause: "'No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States' seem to me an eminently reasonable way of expressing the idea that henceforth the Bill of Rights shall apply to the States."
Due process interpretation Justice
Felix Frankfurter, however, felt that the incorporation process ought to be incremental, and that the federal courts should only apply those sections of the Bill of Rights whose abridgment would "shock the conscience," as he put it in
Rochin v. California (1952). Such a selective incorporation approach followed that of Justice
Moody, who wrote in
Twining v. New Jersey (1908) that "It is possible that some of the personal rights safeguarded by the first eight Amendments against National action may also be safeguarded against state action, because a denial of them would be a denial of due process of law. If this is so, it is not because those rights are enumerated in the first eight Amendments, but because they are of such a nature that they are included in the conception of due process of law." The due process approach thus considers a right to be incorporated not because it was listed in the Bill of Rights, but only because it is required by the definition of
due process, which may change over time. For example, Moody's decision in
Twining stated that the 5th Amendment right against self-incrimination was not inherent in a conception of due process and so did not apply to states, but was overruled in
Malloy v. Hogan (1964). Similarly, Justice
Cardozo stated in
Palko v. Connecticut (1937) that the right against
double jeopardy was not inherent to due process and so does not apply to the states, but that was overruled in
Benton v. Maryland (1969). Frankfurter's incrementalist approach did carry the day, but the end result is very nearly what Justice Black advocated, with the exceptions noted below.
Incorporation under privileges or immunities Some have suggested that the Privileges or Immunities Clause would be a more appropriate textual basis than the due process clause for incorporation of the Bill of Rights. It is often said that the
Slaughter-House Cases "gutted the privileges or immunities clause" and thus prevented its use for applying the Bill of Rights against the states. In his dissent to
Adamson v. California, however, Justice
Hugo Black pointed out that the
Slaughter-House Cases did not directly involve any right enumerated in the Constitution: Thus, in Black's view, the
Slaughterhouse Cases should not impede incorporation of the Bill of Rights against the states, via the Privileges or Immunities Clause. Some scholars go even further, and argue that the
Slaughterhouse Cases affirmatively supported incorporation of the Bill of Rights against the states. In
dicta, Justice Miller's opinion in
Slaughterhouse went so far as to acknowledge that the "right to peaceably assemble and petition for redress of grievances ... are rights of the citizen guaranteed by the Federal Constitution," although in context Miller may have only been referring to assemblies for petitioning the federal government. In the 2010 landmark case
McDonald v. Chicago, the Supreme Court declared the
Second Amendment is incorporated through the Due Process Clause. However, Justice
Thomas, the fifth justice in the majority, criticized substantive due process and declared instead that he reached the same incorporation only through the Privileges or Immunities Clause. No other justice attempted to question his rationale. This is considered by some as a "revival" of the Privileges or Immunities Clause, however as it is a concurring opinion and not the majority opinion in the case, it is not binding precedent in lower courts; it is merely an indication that SCOTUS may be inclined, given the proper question, to reconsider and ultimately reverse the
Slaughterhouse Cases. In the 2019 case
Timbs v. Indiana, the Supreme Court, citing
McDonald, ruled that the
Eighth Amendment's Excessive Fines Clause is incorporated through the Due Process Clause. Justice Thomas did not join this opinion; in a separate opinion concurring in the judgment, he once again declared that he would reach the same incorporation through the Privileges or Immunities Clause. Justice
Gorsuch took an in-between position. He joined the opinion of the Court, but wrote a short concurrence acknowledging that the Privileges or Immunities Clause might be the better vehicle for incorporation—but ultimately deciding that nothing in the case itself turned on the question of which clause is the source of the incorporation.
Possible consequences of the Privileges or Immunities approach In the
Timbs decision, one of Justice Thomas's stated reasons for preferring incorporation through the Privileges or Immunities Clause was what he perceived as the Court's failure to consistently or correctly define which rights are "fundamental" under the Due Process Clause. In Thomas's view, incorporation through Privileges or Immunities would allow the Court to exclude rights from incorporation that had erroneously been deemed fundamental in previous decisions. == Specific amendments ==