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Introduction to Individual Rights

    §1.3 THE INCORPORATION DOCTRINE

    As was noted above, the Bill of Rights by its own force applies only to action by the federal government. However, most of the provisions of the Bill of Rights are now fully enforceable against state or local government action by virtue of the incorporation doctrine, a doctrine through which specific provisions of the Bill of Rights have been absorbed into the Due Process Clause of the Fourteenth Amendment. Thus, if public school students claim a violation of their rights of free speech, the First Amendment, as incorporated by the Due Process Clause of the Fourteenth Amendment, will provide the students with a constitutional basis for their claims. This is so because the First Amendment in effect now operates as a limitation on state and local power by virtue of the Fourteenth Amendment.

    The process of absorption began in the late nineteenth century, when the Court held that the taking of private property for public use without just compensation violates “the due process of law required by the Fourteenth Amendment.” Chicago, Burlington & Quincy Railroad Co. v. Chicago, 166 U.S. 226, 241 (1897). The Chicago, Burlington Court did not, however, describe the Takings Clause as having been incorporated by the Fourteenth Amendment; rather, it concluded that the principle of just compensation was “fundamental” to our system of civil liberties and that the Due Process Clause of the Fourteenth Amendment embraced all such fundamental principles. The question in any case, therefore, was not whether in some technical sense a provision of the Bill of Rights had literally become part of the Fourteenth Amendment, but whether the claimed right was fundamental to our system of justice. Under this approach, not all provisions of the Bill of Rights qualified for inclusion as part of due process. See Hurtado v. California, 110 U.S. 516 (1884) (Fifth Amendment requirement of a grand jury indictment not included in Fourteenth Amendment right of due process).

    The fundamental rights approach to due process was reaffirmed in Twining v. New Jersey, 211 U.S. 78, 98 (1908), where the Court declined to consider whether the Bill of Rights, in its entirety, had been incorporated by the Fourteenth Amendment. The Court deemed the “weighty arguments” in favor of total incorporation foreclosed by prior decisions applying the fundamental rights model. According to the Twining Court, a right is protected by the Due Process Clause “not because [it is] enumerated in the first eight Amendments, but because [it is] of such a nature that [it is] included in the conception of due process of law.” Id. at 99.

    One of the most articulate and often-quoted descriptions of the fundamental rights approach to due process incorporation is found in Justice Cardozo’s opinion for the Court in Palko v. Connecticut, 302 U.S. 319 (1937). By the time of that decision, the Court had already recognized that several provisions of the Bill of Rights were enforceable against the states via the Fourteenth Amendment, including the freedoms of speech and religion, the right of assembly, and, to some extent, the right to counsel. At issue in Palko was whether the Double Jeopardy Clause of the Fifth Amendment should be included within this panoply of fundamental rights. In particular, the defendant argued that, consistent with due process, a state could not appeal an acquittal after a jury trial. In rejecting this contention, the Court attempted to draw a principled distinction between those rights included and those rights excluded from due process protection.

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