Incorporation of the Bill of Rights

InUnited States constitutional law,incorporationis the doctrine by which portions of theBill of Rightshave been made applicable to thestates.When the Bill of Rights was ratified, the courts held that its protections extended only to the actions of thefederal governmentand that the Bill of Rights did not place limitations on the authority of thestateandlocal governments.However, the post–Civil Warera, beginning in 1865 with theThirteenth Amendment,which declared the abolition ofslavery,gave rise to the incorporation of other amendments, applying more rights to the states and people over time. Gradually, various portions of the Bill of Rights have been held to be applicable to state and local governments by incorporation via theDue Process Clauseof theFourteenth Amendmentof 1868.

Prior to the ratification of the Fourteenth Amendment and the development of the incorporation doctrine, theSupreme Courtin 1833 held inBarron v. Baltimorethat the Bill of Rights applied only to the federal, but not any state, governments. Even years after the ratification of the Fourteenth Amendment, the Supreme Court inUnited States v. Cruikshank(1876) still held that theFirstandSecond Amendmentdid not apply to state governments. However, beginning in the 1920s, a series of Supreme Court decisions interpreted the Fourteenth Amendment to "incorporate" most portions of the Bill of Rights, making these portions, for the first time, enforceable against the state governments.

History

Background

No person shall... be deprived of life, liberty, or property, without due process of law...

—Due Process Clauseof theFifth Amendment(1791)

The United States Bill of Rights is the first tenamendmentsto theUnited States Constitution.^[1]Proposed following the oftentimes bitter 1787–88 battle over ratification of the United States Constitution, and crafted to address the objections raised byAnti-Federalists,the Bill of Rights amendments add to the Constitution specific guarantees of personal freedoms andrights,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 thepeople.The concepts enumerated in these amendments are built upon those found in several earlier documents, including theVirginia Declaration of Rightsand the EnglishBill of Rights 1689,along with earlier documents such asMagna Carta(1215). AlthoughJames 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.

[N]or shall any State deprive any person of life, liberty, or property, without due process of law...

—Due Process Clauseof theFourteenth Amendment(1868)

In the 1833 case ofBarron v. Baltimore,theSupreme Court of the United Statesheld that the Bill of Rights did not apply to state governments; such protections were instead provided by theconstitutions of each state.After theCivil War,Congress and the states ratified theFourteenth Amendment,which included theDue Process Clauseand thePrivileges or Immunities Clause.While theFifth Amendmenthad 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 thePrivileges and Immunities ClauseofArticle IVof the Constitution. In theSlaughter-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. InTwining 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.^[2]

Incorporation

The doctrine of incorporation has been traced back to eitherChicago, Burlington and Quincy Railroad v. City of Chicago(1897) in which the Supreme Court appeared to require some form ofjust compensationfor property appropriated by state or local authorities (although there was a state statute on the books that provided the same guarantee) or, more commonly, toGitlow 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.^[3]Provisions that the Supreme Court either has refused to incorporate, or whose possible incorporation have not yet been addressed, include theFifth Amendmentright to an indictment by agrand jury,and theSeventh Amendmentright to ajury trialin 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 inTeague v. Lane,489 U.S.288(1989).

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.^[4]TheU.S. Supreme Courtsubsequently declined to interpret it that way, despite the dissenting argument in the 1947 case ofAdamson v. Californiaby Supreme Court JusticeHugo Blackthat 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).^[5]Although theAdamsonCourt 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 theStatesalmost all of the protections in the Bill of Rights, as well as other, unenumerated rights.^[6]TheBill of Rightsthus 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.^[7]^[8]^[9]The Supreme Court for example concluded in theWest Virginia State Board of Education v. Barnette(1943) case that the founders intended theBill of Rightsto put some rights out of reach from majorities, ensuring that some liberties would endure beyond political majorities.^[7]^[8]^[9]^[10]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."^[10]^[11]This is why "fundamental rights may not be submitted to a vote; they depend on the outcome of no elections."^[10]^[11]The 14th Amendment has vastly expandedcivil rightsprotections and is cited in more litigation than any other amendment to the U.S. Constitution.^[6]

Selective versus total incorporation

In the 1940s and 1960s the Supreme Court gradually issued a series of decisions incorporating several of the specific rights from the Bill of Rights, so as to be binding upon the States.^[12]A dissenting school of thought championed byJustices Hugo BlackandWilliam O. Douglassupported 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.^[13]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 theNinth Amendment.TheTenth Amendmentwas excluded from total incorporation as well, due to it already being patently concerned with the power of the states.^[13]Black felt that his formulation eliminated any arbitrariness or caprice in deciding what the Fourteenth Amendment ought to protect, by sticking to words already found in the Constitution. Although Black was willing to invalidate federal statutes on federalism grounds, he was not inclined to read any of the first eight amendments as states' rights provisions as opposed to individual rights provisions.^[13]Justice Black felt that the Fourteenth Amendment was designed to apply the first eight amendments from the Bill of Rights to the states, as he expressed in his dissenting opinion inAdamson v. California.^[14]This view was again expressed by Black in his concurrence inDuncan v. Louisianaciting 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."^[15]

Due process interpretation

JusticeFelix 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 inRochin v. California(1952). Such a selective incorporation approach followed that of JusticeMoody,who wrote inTwining 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 ofdue process,which may change over time. For example, Moody's decision inTwiningstated 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 inMalloy v. Hogan(1964). Similarly, JusticeCardozostated inPalko v. Connecticut(1937) that the right againstdouble jeopardywas not inherent to due process and so does not apply to the states, but that was overruled inBenton 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

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States....

—Privileges or Immunities Clauseof theFourteenth Amendment

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.^[16]It is often said that theSlaughter-House Cases"gutted the privileges or immunities clause" and thus prevented its use for applying the Bill of Rights against the states.^[17]In his dissent toAdamson v. California,however, JusticeHugo Blackpointed out that theSlaughter-House Casesdid not directly involve any right enumerated in the Constitution:

[T]he state law under consideration in the Slaughter-House cases was only challenged as one which authorized a monopoly, and the brief for the challenger properly conceded that there was "no direct constitutional provision against a monopoly." The argument did not invoke any specific provision of the Bill of Rights, but urged that the state monopoly statute violated "the natural right of a person" to do business and engage in his trade or vocation.^[18]

Thus, in Black's view, theSlaughterhouse Casesshould 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 theSlaughterhouse Casesaffirmatively supported incorporation of the Bill of Rights against the states.^[19]Indicta,Justice Miller's opinion inSlaughterhousewent 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.^[20]

In the 2010 landmark caseMcDonald v. Chicago,the Supreme Court declared theSecond Amendmentis incorporated through the Due Process Clause. However, JusticeThomas,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.^[21]No other justice attempted to question his rationale. This is considered by some as a "revival" of the Privileges or Immunities Clause,^[22]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 theSlaughterhouse Cases.

In the 2019 caseTimbs v. Indiana,the Supreme Court, citingMcDonald,ruled that theEighth Amendment'sExcessive 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. JusticeGorsuchtook 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.^[23]

Possible consequences of the Privileges or Immunities approach

In theTimbsdecision, 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' view, incorporation through Privileges or Immunities would allow the Court to exclude rights from incorporation which had erroneously been deemed fundamental in previous decisions.^[23]

Another difference between incorporation through Due Process versus Privileges or Immunities is that the text of the Privileges or Immunities Clause refers only to the privileges or immunities of "citizens," while the Due Process Clause protects the due process rights of "any person." It is possible that a switch to Privileges or Immunities incorporation would limit protections of the rights of non-citizens against state governments.^[24]

Specific amendments

Many of the provisions of the First Amendment were applied to the States in the 1930s and 1940s, but most of the procedural protections provided to criminal defendants were not enforced against the States until theWarrenCourt of the 1960s, famous for its concern for the rights of those accused of crimes, brought state standards in line with federal requirements. The following list enumerates, by amendment and individual clause, the Supreme Court cases that have incorporated the rights contained in the Bill of Rights. (TheNinth Amendmentis not listed; its wording indicates that it "is not a source of rights as such; it is simply a rule about how to read the Constitution."^[25]TheTenth Amendmentis also not listed; by its wording, it is a reservation of powers to the states and to the people.)

Amendment I

Guarantee againstestablishment of religion

This provisionhas been incorporatedagainst the states.SeeEverson v. Board of Education,330 U.S.1(1947).^[26]

Guarantee offree exercise of religion

This provisionhas been incorporatedagainst the states.SeeCantwell v. Connecticut,310 U.S.296(1940).

Guarantee offreedom of speech

This provisionhas been incorporatedagainst the states.SeeGitlow v. New York,^[27]268 U.S.652(1925) andStromberg v. California,283 U.S.359(1931).

Guarantee offreedom of the press

This provisionhas been incorporatedagainst the states.SeeGitlow v. New York,^[27]268 U.S.652(1925)Near v. Minnesota,283 U.S.697(1931).

Guarantee offreedom of assembly

This provisionhas been incorporatedagainst the states.SeeDe Jonge v. Oregon,299 U.S.353(1937).

Guarantee of theright to petitionfor redress of grievances

This provisionhas been incorporatedagainst the states.SeeEdwards v. South Carolina,372 U.S.229(1963).^[28]^[29]

Guarantee offreedom of expressive association

This right, though not in the words of the first amendment, was first mentioned in the caseNAACP v. Alabama,357 U.S.449(1958)^[30]and was at that time applied to the states. See alsoRoberts v. United States Jaycees,468 U.S.609(1984), where the U.S. Supreme Court held that "implicit in the right to engage in activities protected by the First Amendment" is "a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends."

Amendment II

Right to keep and bear arms

This righthas been incorporatedagainst the states since Presser v. Illinois, 116 U.S. 252 (1886). Presser at 119 U.S. 253 states "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 Second Amendment was described as a fundamental and individual right that will necessarily be subject to strict scrutiny by the courts,seeMcDonald v. City of Chicago(2010). Sonzinsky v. U.S., 300 U.S. 506 (1937) improperly affirmed the National Firearms Act(1937) by failing consider if the NFA infringed on fundamental rights. McCray v. U.S., 195 U.S. 27 (1904), [cited at 194 U.S. 60-91 and 194 U.S. 56-59] at 195 U.S. 64. states if "...[taxing] power had been called into play not for revenue, but solely for the purpose of destroying rights which could not be rightfully destroyed...that it would be the duty of the courts to say that such an arbitrary act was not merely an abuse of a delegated power, but was the exercise of an authority not conferred." Self Defense is described as "the central component" of the Second Amendment inMcDonald v. City of Chicago(2010). Presser, 116 U.S. 253 held "...the states cannot prohibit the people from keeping and bearing arms so as to deprive the United States of their rightful resource for maintaining the public security."

Amendment III

Freedom from quartering of soldiers

This provisionhas been incorporatedagainst the states within the jurisdiction of theUnited States Court of Appeals for the Second Circuit,buthasnotbeen incorporatedagainst the states elsewhere. The Supreme Court has not yet heard an appeal about applying this protection in all states.

In 1982, theSecond Circuitapplied the Third Amendment to the states inEngblom v. Carey.This is a binding authority over the federal courts inConnecticut,New York,andVermont,but is only a persuasive authority over the other courts in the United States.

TheTenth Circuithas suggested that the right is incorporated because the Bill of Rights explicitly codifies the "fee ownership system developed in English law" through the Third, Fourth, and Fifth Amendments, and the Fourteenth Amendment likewise forbids the states from depriving citizens of their property without due process of law.See United States v. Nichols,841 F.2d 1485, 1510 n.1 (10th Cir. 1988).

Amendment IV

Unreasonable search and seizure

This righthas been incorporatedagainst the states by the Supreme Court's decision inMapp v. Ohio,367 U.S.643(1961), although there isdictainWolf v. Colorado,338 U.S.25(1949), saying the "core" of the Fourth Amendment applied to the States.
The remedy of exclusion of unlawfully seized evidence, theexclusionary rule,has been incorporatedagainst the states. SeeMapp v. Ohio.InMapp,the Court overruledWolf v. Coloradoin which the Court had ruled that the exclusionary rule did not apply to the states.

Warrantrequirements

The various warrant requirementshave been incorporatedagainst the states.SeeAguilar v. Texas,378 U.S.108(1964).
The standards for judging whether a search or seizure undertaken without a warrant was "unreasonable" alsohave been incorporatedagainst the states.SeeKer v. California,374 U.S.23(1963).

Amendment V

Right toindictmentby agrand jury

This right has beenheldnot to beincorporatedagainst the states.SeeHurtado v. California,110 U.S. 516 (1884).

Protection againstdouble jeopardy

This righthas been incorporatedagainst the states.SeeBenton v. Maryland,395 U.S.784(1969). However, this is generally limited by thedoctrine of dual sovereignty,according to which a conviction, or acquittal, in federal court does not prevent a conviction in state court for the same crime, and a conviction in a court of one state does not prevent a conviction for the same action in a court of another state.SeeBartkus v. Illinois,359 U.S.121(1959),Heath v. Alabama,474 U.S.82(1985),Gamble v. United States(2019).

Constitutional privilege againstself-incrimination

This righthas been incorporatedagainst the states.^[31]^[32]
1. Self Incrimination in CourtSeeGriffin v. California,380 U.S. 609 (1965),Malloy v. Hogan,378 U.S.1(1964).
2. MirandaSeeMiranda v. Arizona,384 U.S.436(1966).
A note about theMirandawarnings: The text of the Fifth Amendment does not require that the police, before interrogating a suspect whom they have in custody, give him or her the now-famousMirandawarnings. Nevertheless, the Court has held that these warnings are a necessary prophylactic device, and thus required by the Fifth Amendment in order to introduce a suspect's statements against him or her as part of a prosecutor's case-in-chief whether in state or federal court. The Court has held inVega v. Tekohthat failure to provide Miranda warnings does not, by itself, violate the Fifth Amendment.

Right to Due Process of Law

This right has not formally been incorporated, with the Court reasoning that the Fourteenth Amendment already protects due process of law against state violation. It first defended the Fourteenth Amendment as protecting due process of law at the state level inScott v. McNeal,154 U.S. 34, at 45 (1894).^[33]

Protection againsttaking of private propertywithout just compensation

This righthas been incorporatedagainst the states. SeeChicago, Burlington & Quincy Railroad Co. v. City of Chicago,166 U.S. 226 (1897).

Amendment VI

Right to aspeedy trial

This righthas been incorporatedagainst the states.SeeKlopfer v. North Carolina,386 U.S.213(1967).

Right to apublic trial

This righthas been incorporatedagainst the states.SeeIn re Oliver,333 U.S.257(1948).

Right totrial by impartial jury

This righthas been incorporatedagainst the states.SeeDuncan v. Louisiana,391 U.S.145(1968), which guarantees the right to a jury trial in non-petty cases.^[34]See alsoParker v. Gladden,385 U.S.363(1966), where the Supreme Court ruled "that the statements of the bailiff to the jurors are controlled by the command of the Sixth Amendment, made applicable to the States through the Due Process Clause of the Fourteenth Amendment. It guarantees that 'the accused shall enjoy the right to atrial, by an impartial jury....' "^[34]^{[dead link]}However, the size of the jury vary between federal and state courts. Even so, the Supreme Court has ruled that a jury in a criminal case may have as few as six members.Williams v. Florida,399 U.S.78(1970). Furthermore, there is no right to a jury trial in juvenile delinquency proceedings held in state court.SeeMcKeiver v. Pennsylvania,403 U.S.528(1971). The Supreme Court ruled inRamos v. Louisiana(2020) that a unanimous jury vote requirement for criminal convictionsis further incorporatedagainst the states, overturning the priorApodaca v. Oregon(1972) which had allowed states to make this determination on its own.^[35]

Right to ajury selected from residents of the state and district where the crime occurred

This righthasnot beenincorporatedagainst the states.See Zicarelli v. Dietz,633 F.2d 312 (3rd Cir. 1980). InZicarelli v. Gray,543 F.2d 466 (3d Cir. 1976), a lower federal court "assumed" that state governments could not violate the vicinage right.^[3]The Supreme Court has not yet heard a case concerning application of this federal right to the state level.

Right tonotice of accusations

This righthas been incorporatedagainst the states.SeeIn re Oliver,333 U.S.257(1948).See alsoRabe v. Washington,405 U.S.313(1972).^[34]

Right toconfront adverse witnesses

This righthas been incorporatedagainst the states.SeePointer v. Texas,380 U.S.400(1965).

Right to compulsory process (subpoenas) to obtain witness testimony

This righthas been incorporatedagainst the states.SeeWashington v. Texas,388 U.S.14(1967).

Right toassistance of counsel

This righthas been incorporatedagainst the states.SeePowell v. Alabama287 U.S.45(1932), for capital cases,seeGideon v. Wainwright,372 U.S.335(1963) for all felony cases, andseeArgersinger v. Hamlin,407 U.S.25(1972) for imprisonable misdemeanors.^[34]In subsequent decisions, the Court extended the right to counsel to any case in which a jail sentence is imposed.
However, the right to petition a federal court for relief against ineffective assistance of state-level councilhasnotbeen incorporated against the statesif the evidentiary basis for such a procedure was not introduced into the state trial record.SeeShinn v. Martinez Ramirez,596 U.S. ___ (2022).

Amendment VII

Right tojury trial in civil cases

This righthasnot beenincorporatedagainst the states.^[36]SeeDohany v. Rogers,281 U.S.362(1930),Walker v. Sauvinet,92 U.S. 90 (1876). InWalker,Justice Morrison Waite ruled that the Fourteenth Amendment did not compel states to provide jury trials for civil matters because states "are left to regulate trials in their own courts in their own way. A trial by jury in suits at common law pending in the State courts is not, therefore, a privilege or immunity of national citizenship."^[37]

Re-Examination Clause

This righthasnot beenincorporatedagainst the states.^[36]See The Justices v. Murray,76 U.S. (9 Wall.) 274 (1870),andMinneapolis & St. Louis R. Co. v. Bombolis,241 U.S.211(1916). The right prevents federal courts from retrying a civil jury case without following common law procedures, but not state courts. As the Court ruled inJustices,"the seventh amendment could not be invoked in a State court to prohibit it from re-examining, on a writ of error, facts that had been tried by a jury in the court below."^[38]

Amendment VIII

Protection againstexcessive bail

This rightmay have been incorporatedagainst the states. InSchilb v. Kuebel,404 U.S. 357 (1971), the Court stated in dicta: "Bail, of course, is basic to our system of law, and the Eighth Amendment's proscription of excessive bail has been assumed to have application to the States through the Fourteenth Amendment." InMurphy v. Hunt,455 U.S.478(1982), the Court did not reach the issue because the case was dismissed as moot. Bail was included in the list of incorporated rights inMcDonaldfootnote 12, citingSchilb.

Protection againstexcessive fines

This righthas been incorporatedagainst the states. SeeTimbs v. Indiana(2019), in which JusticeRuth Bader Ginsburgwrote for the majority "For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history: Exorbitant tolls undermine other constitutional liberties."^[39]^[40]

Protection againstcruel and unusual punishments

This righthas been incorporatedagainst the states.SeeRobinson v. California,370 U.S.660(1962). This holding has led the Court to suggest, in dicta, that the excessive bail and excessive fines protections have also been incorporated.SeeBaze v. Rees,128 S. Ct. 1520, 1529 (2008).

Reverse incorporation

A similar legal doctrine to incorporation is that ofreverse incorporation.Whereas incorporation applies the Bill of Rights to the states through theEqual Protection Clauseand the Due Process Clause of the Fourteenth Amendment,equality before the lawis required under the laws of the federal government by the Due Process Clause of theFifth Amendment.^[41] For example, inBolling v. Sharpe,347 U.S.497(1954), which was a companion case toBrown v. Board of Education,the schools of the District of Columbia were desegregated even though Washington is a federal enclave. Likewise, inAdarand Constructors, Inc. v. Peña515 U.S.200(1995), an affirmative action program by the federal government was subjected to strict scrutiny based on equal protection.^{[citation needed]}

References

^"The Charters of Freedom: The Bill of Rights".Washington D.C.:National Archives and Records Administration.RetrievedOctober 4,2015.
^Chu, Vivian (September 21, 2009)."The Second Amendment and Incorporation: An Overview of Recent Appellate Cases"(PDF).Congressional Research Service. Archived fromthe original(PDF)on October 6, 2022.RetrievedOctober 13,2017.
^^a ^bSee, e.g., Gary Bugh (2023).Incorporation of the Bill of Rights: An Accounting of the Supreme Court’s Extension of Federal Civil Liberties to the States.New York: Peter Lang ISBN 9781433196317;Constitutional Rights Foundationdiscussion, giving summary, extensive WWW links and timeline;Encyclopedia.com Article;BYU Law Review Article
^Congressional Globe: Debates and Proceedings, 1833–1873
^Adamson v. California,332 U.S. 46, 92-118 (1947)
^^a ^b"Primary Documents in American History",Library of Congress
^^a ^bJeffrey Jowell; Jonathan Cooper (2002).Understanding Human Rights Principles.Oxford and Portland, Oregon: Hart Publishing. p. 180.ISBN 9781847313157.RetrievedMarch 16,2017.
^^a ^bLoveland, Ian (2002)."Chapter 18 - Human Rights I: Traditional Perspectives".Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction(Seventh ed.). London: Oxford University Press. p. 559.ISBN 9780198709039.RetrievedMarch 16,2017.
^^a ^bJayawickrama, Nihal (2002).The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence.Cambridge: Cambridge University Press. p. 98.ISBN 9780521780421.RetrievedMarch 16,2017.
^^a ^b ^cWest Virginia State Board of Education v. Barnette,319 U.S. 624,Majority Opinion, item 3 (US 1943) ( "The very purpose of a 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. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." ), archived fromthe original.
^^a ^bObergefell v. Hodges,No. 14-556,slip op.Archived2019-10-02 at theWayback Machineat 24 (U.S. June 26, 2015).
^Steffen W. Schmidt, Mack C. Shelley, Barbara A. Bardes:American Government and Politics Today,Page 71. Thomson Wadsworth, 2004.
^^a ^b ^cAmar, Akhil Reed:The Bill of Rights: Creation and Reconstruction,Page 234. Yale University Press, 1998
^Curtis, Michael Kent (1994) [1986].No State Shall Abridge(Second printing in paperback ed.). Duke University Press. pp.5, 202.ISBN 0-8223-0599-2.
^Curtis, Michael Kent (1994) [1986].No State Shall Abridge(Second printing in paperback ed.). Duke University Press. p.202.ISBN 0-8223-0599-2.
^See Doherty, Brian. "Killing Slaughterhouse: Understanding the controversial 1873 decision at the center of the Supreme Court's upcoming gun rights fight,"Reason MagazineRetrieved 2010-01-26.
^See Pilon, Roger. "Lawless Judges: Refocusing the Issue for Conservatives,"Georgetown Journal of Law and Public PolicyVolume II, page 21 (2000).
^Adamson v. California,332 U.S. 46(1947) (Black, J., dissenting).
^See Wildenthal, Bryan. "The Lost Compromise: Reassessing the Early Understanding in Court and Congress on Incorporation of the Bill of Rights in the Fourteenth Amendment".Ohio State Law Journal,Vol. 61 (2000).
^Slaughter-House Cases,83 U.S. 36 (1873).
^McDonald v. City of Chi., 561 U.S. 742, 806 (2010) (Thomas, J., dissenting)
^Privileges or Immunities Clause alive again
^^a ^bTimbs v. Indiana, 586 U.S. Argued November 28, 2018—Decided February 20, 2019
^William J. Aceves (September 9, 2019)."A Distinction with a Difference: Rights, Privileges, and the Fourteenth Amendment".Tex. L. Rev.98.
^Laurence H. Tribe (1998).American Constitutional Law(2nd ed.). p. 776 n. 14.
^JusticeThomas,in a concurring opinion inElk Grove Unified School District v. Newdow,expressed his view thatEversonwas wrongly decided and that incorporation of the Establishment Clause is not justified under the Constitution. SeeNussbaum, Martha Craven(2008).Liberty of conscience: in defense of America's tradition of religious equality.Basic Books. pp.105et seq. and Chapter 4.ISBN 978-0-465-05164-9.Richard F. Duncan (2007)."JUSTICE THOMAS AND PARTIAL INCORPORATION OF THE ESTABLISHMENT CLAUSE: HEREIN OF STRUCTURAL LIMITATIONS, LIBERTY INTERESTS, AND TAKING INCORPORATION SERIOUSLY"(PDF).Regent University Law Review.20:37–56. Archived fromthe original(PDF)on January 15, 2013.
^^a ^b"Gitlow v. New York, 268 U.S. 652 (1925) at 268".Justia US Supreme Court Center. June 8, 1925.RetrievedAugust 2,2020.For present purposes, we may and do assume that freedom of speech and of the press which are protected by the First Amendment from abridgment by Congress are among the fundamental personal rights and "liberties" protected by the due process clause of the Fourteenth Amendment from impairment by the States.
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