Incorporation

Question 1

What is the Incorporation Doctrine?

Answer 1

Incorporation means that certain rights from the Bill of Rights now apply against the States through the substantive Due Process Clause of the 14A.

If not for Slaughterhouse, we would have expected the P&I clause, rather than the Due Process Clause, to apply the Bill of Rights to the States.

Question 2

What does “liberty” mean in the context of the Incorporation debate?

Answer 2

There is debate around the meaning of “liberty” in the 14A Due Process Clause:

“nor shall any State deprive any person of life, liberty, or property, without due process of law” - 14A

The court invents “fundamental” rights and “substantive” due process out of its interpretation of the word “liberty” there.

Question 3

Selective Incorporation vs. Total Incorporation

Answer 3

Justice Black argued for TOTAL incorporation: the 14A Due Process Clause would automatically incorporate the entire Bill of Rights.

The majority in Adamson instead chose SELECTIVE incorporation, so they will only apply certain rights from the Bill of Rights against the States.

Policy Issue: Justice Black warned that selective incorporation would give judges too much discretionary power. However, ironically it is more lenient to the states to apply it selectively, because without total incorporation, they have more freedom to make rules. The slippery slope provided by a test gives them leeway to follow their own biases.

Question 4

What is Currently Incorporated?

Answer 4

All provisions have been incorporated by selective incorporationism except:
1) third amendment; and
2) fifth amendment right to indictment by a grand jury; and
3) seventh amendment (jury trial) doesn’t apply in civil cases.

Question 5

Test for Selective Incorporation (from Timbs v. Indiana)

Answer 5

Ask whether the textual provision from the BoR is:

1) Deeply rooted in the nation’s history and traditions OR
2) Implicit in the concept of ordered liberty.

Policy Issue: This test opens the door to unenumerated rights being created and applying them to restrict the states. It does this by reading rights into the word “liberty” in the 14A.

If the court grants protection to an unenumerated right, it is also binding on the feds because of the Due Process Clause in the 5A. Whatever is a substantive liberty for the states is also imposed on the feds.

Question 6

How does substantive Due Process emerge from the Incorporation Test?

Answer 6

The slippery slope created by the test means that judges can interpret “liberty” to include unenumerated rights and therefore give substantive protection to the Due Process Clause despite how it was probably intended to just be procedural. By virtue of the Due Process Clause, some rights can now be considered “fundamental” and protected despite no textual origin in the BoR.

You can say anything is fundamental or deeply rooted if you try hard enough.

Note about 9th Amendment: this says that the BoR is not exclusive in listing our rights. How do we know what those others are? The selective incorporationists apply that test. But total incorporationists like Black aren’t convinced because of the slippery slope toward fundamental protection of unenumerated rights.