What is the “incorporation” of the Bill of Rights?

In U.S. law, the Bill of Rights consists of the first ten amendments to the U.S. Constitution.  These amendments guarantee basic civil rights that U.S. citizens have when facing actions taken by the federal government.

In 1868, at the end of the U.S. Civil War, the U.S. Congress passed the Fourteenth Amendment to the federal Constitution.   Among other guarantees, the Fourteenth Amendment states that “no state shall…deprive any person of life, liberty, or property without due process of law.”  This wording matches the federal Due Proces clause, which appears in the Fifth Amendment.  Since the 1890s, U.S. courts have applied the “due process” language in the Fourteenth Amendment to rule that many of the rights included in the Bill of Rights apply to state and local governments as well as to federal government actions.  These rights are known as “incorporated” rights.

While not all of the rights listed in the Bill of Rights are incorporated to protect citizens against certain state or local government actions, most of the well-known Constitutional rights have been incorporated.  These include:

  • All rights protected by the First Amendment.  These are the rights to freedom of speech, freedom of the press, freedom to practice or not to practice a certain religion, freedom to assemble peacefully, and freedom to petition the government to fix problems.
  • The right to be protected against unlawful searches and seizures of one’s person or property.
  • The right to be compensated if the government takes one’s property (known as “eminent domain”).
  • Many criminal procedure rights, including the right not to testify against oneself; the right to a competent attorney; the right to a jury; the right not to be tried twice for the same crime (known as “double jeopardy”); the right to a speedy trial; the right to confront witnesses and to present evidence in one’s own defense; and the right to be informed of the charges one is facing.
  • The Eighth Amendment right to be free from cruel and unusual punishment or excessive bail costs.

A few amendments in the Bill of Rights contain rights that have not been incorporated against the states.  These rights are available in federal court and other proceedings, but not in state or local court proceedings, unless the state has a similar protection in its own state constitution.  The amendments that have not been incorporated include the Third Amendment protection against being forced to house soldiers in one’s own home, and the Seventh Amendment right to a jury trial in any civil case where the damages in dispute are higher than $20.00.

When deciding whether or not to incorporate a particular amendment against the states, the U.S. Supreme Court typically asks whether the right in dispute is “fundamental,” “implicit in the concept of ordered liberty,” and/or “deeply rooted in the nation’s history and traditions.”  Rights that meet any of these criteria are more likely to be incorporated than rights that do not meet these criteria.

Since the Supreme Court cannot issue advisory opinions, a right is only incorporated if the Court has heard a case asking it to consider incorporation.  For instance, the Third Amendment protection against forced quartering of soldiers in private homes is not incorporated, but not because the Supreme Court did not think this right was not “fundamental.”  Rather, this Amendment is not incorporated currently because the Supreme Court has never heard any case on the Third Amendment, let alone one that asked for its incorporation.

Incorporation deals with how the federal Constitution’s Bill of Rights affects what state and local governments can do when dealing with individual citizens.  If a right has not been incorporated, state and local governments are not bound by the federal Constitution to acknowledge that right.  They may, however, be bound by the state constitution, which might provide that right to state residents even if the federal Constitution does not apply.

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