Incorporation We Trust

The Bill of Rights did not apply to the States prior to 1890. Today, most (but not all!) of those rights apply to the States.

Patrick Henry felt that the preamble to the Constitution should read "We the States" rather than "We the People." Others agreed, creating the legal battle over the ratification (or authentication of) of the Constitution. This battle was waged in some newspapers in New York, now known as the Federalist Papers. In those newspaper articles, Madison and Hamilton were able to convince the anti-federalists, those against ratifying the Constitution, that the federal government will not have too much power over individuals. This was done by authoring the Bill of Rights and drafting them into the new Constitution.

What few people realize, however, is that the Constitution was never meant to apply to the States. Rather, the Constitution is a document designed to decree and limit the power of the federal government--not state governments. Those working for or against the Constitution during its inception had little thought for limitations on State power.

The Supreme Court reinforced these truths in the century following ratification. Once in 1833 and later in 1876, that Court held that federal rights did not apply to the States. The States could happily suppress the freedom of speech, the right against self-incrimination (including torture), or the right to a jury trial. This idea changed in the 1890s when some Supreme Court cases held that the Fourteenth Amendment (drafted a few decades previous) was meant to incorporate basic rights to the states. This incorporation was to come on a case-by-case basis. To determine which rights to incorporate, the Supreme Court ordered that there be a test for each right being tested in a court:

1. Is the right given by the Constitution a right among those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions?
2. Is the right basic in our system of jurisprudence?
3. Is the right a fundamental right essential to a fair trial?

Today, most rights have been incorporated, though there are a few which have not:

a. The Third Amendment has been incorporated against the States in the second circuit only. This means that the right to freedom against quartering of soldiers applies only in New York, Vermont, and Connecticut.
b. The Fifth Amendment right to indictment (official accusation of a crime) by a grand jury has not been incorporated.
c. The Seventh Amendment right to a jury in civil cases has not been incorporated (and is frequently denied).
d. The Eighth Amendment right to protection against excessive bail and excessive fines has not been incorporated.




Barron v. Mayor of Baltimore, 32 U.S. 243 (1833) (holding the Bill of Rights does not apply to the States);

United States v. Cruikshank, 92 U.S. 542 (1876) (holding the first and second amendments do not apply against the states);

Duncan v. Louisiana, 391 U.S. 145 (1968) (providing the test for incorporation);

Engblom v. Carey, 677 F.2d 957 (2d Cir. 1982) (incorporating the Third Amendment in the Second Circuit);

Hurtado v. California, 110 U.S. 516 (1884) (holding the right to a grand jury indictment is not incorporated);

Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211 (1916) (holding the right to a civil jury trial is not incorporated);

Murphy v. Hunt, 455 U.S. 478 (1982) (avoiding the issue of Eighth Amendment incorporation).