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Recent Supreme Court Jurisprudence and the Bill of Rights: Part 1—The Doctrine of Incorporation

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Tom R. Hulst
August 22, 2022

American constitutional jurisprudence has endured turbulent times recently. In June, the U.S. Supreme Court issued decisions that greatly impact public administration—and privacy rights, separation of church and state, climate mitigation and state gun regulations. It is, therefore, imperative that administrative leaders appreciate the significant milestones in constitutional history; and assist the public in understanding the legal doctrine of selective incorporation of the Bill of Rights.

English common law bestowed on Americans such rights as mens rea (necessity of criminal intent for commission of a crime), prohibition of ex post facto laws (retroactive law) and writ of habeas corpus. While these rights were included in the body of the U.S. Constitution, many people were indignant that the Constitution did not include a “Bill of Rights.” After the Constitutional Convention of 1787, Anti-Federalists such as Patrick Henry and Samuel Adams opposed ratification of the Constitution because it did not include a bill of rights. James Madison agreed to add them to the Constitution as soon as Congress convened under the new charter. The first ten amendments to the Constitution—the Bill of Rights—were adopted thereafter by Congress in 1789, and by 1791 all states had ratified them.

One provision of the Fifth Amendment to the Constitution declares “nor shall any person . . . be deprived of life, liberty or property without due process of law.” The “due process of law” clause is parched with age and has become a bulwark of liberty over the last 200 years here and abroad. It gave birth to the Fourteenth Amendment, adopted after the Civil War, which stated, “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.” Sadly, real citizenship was denied for African Americans and other minorities for 100 years. Indeed, the “Bill of Rights” did not become applicable to state and local governments until the twentieth century, through the doctrine of incorporation.

In 1833 in Barron v. Baltimore, Chief Justice Marshall ruled that the Bill of Rights limited the powers of the federal government, only—and did not constrain the powers of state and local governments. In the Slaughter-House cases of 1873, after ratification of the Fourteenth Amendment by the states, the Supreme Court found that the privileges and immunities clause of the amendment did not extend the Bill of Rights to citizens of the individual states.  

It wasn’t until 1925 that the Supreme Court began the process of applying the Bill of Rights—gradually and selectively—to state and local governments. This is referred to in legal parlance as the “doctrine of incorporation”, wherein specific freedoms in the Bill of Rights are made applicable to the states through the Due Process Clause of the Fourteenth Amendment.

In the case, Gitlow v. New York, the Supreme Court affirmed that the First Amendment rights of freedom of speech and press “are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the 14th Amendment from impairment by the states.” The religion clauses of the First Amendment were incorporated by the Court in Everson v. Board of Education in 1947. The search provisions of the Fourth Amendment were made applicable to the states in 1961 (Mapp v. Ohio); and double jeopardy of the Fifth Amendment was secured against the states in 1969 (Benton v. Maryland). Some protections in the Bill of Rights—including the requirement of indictment by a grand jury (Sixth Amendment) and the right to a jury trial in civil cases (Seventh Amendment)—have not been made applicable by the Supreme Court to the states through the doctrine of incorporation.

The Second Amendment was not incorporated vis-à-vis the states until 2010. One of the only times the Second Amendment was ruled on by the Supreme Court, was in Miller v. Chicago in 1939. In Miller, the Court ruled unanimously that the “obvious purpose” of the Amendment was to “assure the continuation and render possible the effectiveness of state militias.” In the Heller case in 2008, the Supreme Court finally declared that the Second Amendment conferred an “individual right” (not merely a “collective right”) to keep and bear arms. In 2010 in McDonald v. Chicago the Court held that this newly declared individual right obtained in Heller (for the District of Columbia) was now a constitutional right made obligatory through the due process clause of the Fourteenth Amendment upon states—and municipalities.

Determinations that the Bill of Rights and the privileges and immunities of the Fourteenth Amendment do not apply to states; or, in the alternative, that certain provisions of the Bill of Rights do apply to the states, have been made by Supreme Court Justices over 200 years. As Justice Kennedy wrote In Obergefell v. Hodges, “[t]he identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution.” In taking the constitutional oath, public administrators are juridical partners and should mindfully balance the goals of sound public policy and research with an enduring understanding of constitutional history. 

Recent Supreme Court Jurisprudence and the Bill of Rights: Part 2 will address how the Court interprets the language set forth by the founders in applying the Bill of Rights to modern society.

Author: Tom R. Hulst received an MA in public administration from Washington State University. He served as policy advisor to Governor Daniel J. Evans, administrator in the State Superintendent Office of Public Instruction, and superintendent of Peninsula School District. He published The Footpaths of Justice William O. Douglas in 2004 and currently teaches political science at Tacoma Community College

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