Selective Incorporation Was Established In Which Supreme Court Case

The concept of selective incorporation, a cornerstone of modern American constitutional law, ensures that states cannot enact laws that take away the constitutional rights of American citizens that are enshrined in the Bill of Rights. But in which landmark Supreme Court case was this doctrine truly established?

The Genesis of Selective Incorporation

Before diving into the specific case that solidified selective incorporation, it’s essential to understand the historical context. The Bill of Rights, comprising the first ten amendments to the U.S. Constitution, was initially intended to limit the power of the federal government. The question then arose: Did these protections also apply to state governments?

The Fourteenth Amendment, ratified in 1868, played a pivotal role in this debate. It includes the Due Process Clause, which states that no state shall "deprive any person of life, liberty, or property, without due process of law." This clause became the vehicle through which many of the Bill of Rights protections were applied to the states.

Early Cases and the Road to Selective Incorporation

The Supreme Court's journey toward selective incorporation was gradual and marked by significant cases.

Barron v. Baltimore (1833)

In Barron v. Baltimore, the Supreme Court, under Chief Justice John Marshall, held that the Bill of Rights applied only to the federal government. The case involved a claim by John Barron, who argued that the city of Baltimore had deprived him of property without just compensation, violating the Fifth Amendment. The Court ruled that the Fifth Amendment, like the rest of the Bill of Rights, was intended as a restraint solely on the exercise of power by the federal government.

Slaughter-House Cases (1873)

The Slaughter-House Cases were the first major interpretation of the Fourteenth Amendment. The cases arose from a Louisiana law that granted a monopoly to a single slaughterhouse in New Orleans. Independent butchers argued that this violated their Fourteenth Amendment rights, specifically the Privileges and Immunities Clause. The Supreme Court narrowly construed the Privileges and Immunities Clause, holding that it protected only those rights that stemmed from federal citizenship, not state citizenship. This ruling limited the scope of the Fourteenth Amendment and made it difficult to apply the Bill of Rights to the states.

Chicago, Burlington & Quincy Railroad Co. v. City of Chicago (1897)

This case marked one of the earliest instances where the Supreme Court applied a provision of the Bill of Rights to the states through the Fourteenth Amendment. The case involved the City of Chicago’s condemnation of private property for public use. The railroad company argued that the city had not justly compensated them for the taking, violating the Fifth Amendment’s Takings Clause. The Supreme Court agreed, holding that the Due Process Clause of the Fourteenth Amendment requires states to provide just compensation for private property taken for public use.

Gitlow v. New York (1925)

Gitlow v. New York was a landmark case that significantly advanced the doctrine of incorporation. Benjamin Gitlow was convicted under New York’s Criminal Anarchy Law for distributing a socialist manifesto. Gitlow argued that the law violated his First Amendment rights to freedom of speech and the press. While the Supreme Court upheld Gitlow’s conviction, it also stated that the First Amendment’s protections of speech and press were among the fundamental personal rights and liberties protected by the Due Process Clause of the Fourteenth Amendment from impairment by the states. This case was a crucial step in applying the Bill of Rights to the states.

Near v. Minnesota (1931)

In Near v. Minnesota, the Supreme Court struck down a Minnesota law that allowed courts to issue injunctions against newspapers deemed to be "malicious, scandalous, and defamatory." The Court held that the law violated the First Amendment’s guarantee of freedom of the press, as applied to the states through the Fourteenth Amendment. This case reinforced the principle established in Gitlow that the Fourteenth Amendment protects fundamental rights against state action.

Palko v. Connecticut (1937): A Turning Point

While several cases contributed to the incorporation doctrine, Palko v. Connecticut is particularly noteworthy because it articulated a clear standard for determining which rights were to be incorporated.

Background of the Case

Frank Palko was charged with first-degree murder but was convicted of second-degree murder. The state appealed, and Palko was retried, this time convicted of first-degree murder and sentenced to death. Palko argued that the second trial violated the Fifth Amendment protection against double jeopardy, which he claimed was applicable to the states through the Fourteenth Amendment.

The Court’s Ruling

The Supreme Court, in an 8-1 decision written by Justice Benjamin Cardozo, upheld Palko’s second conviction. The Court articulated a test for determining which rights in the Bill of Rights were so fundamental that they applied to the states through the Fourteenth Amendment.

Justice Cardozo distinguished between rights that were "of the very essence of a scheme of ordered liberty" and those that were not. He argued that the Fifth Amendment protection against double jeopardy was not a fundamental right that applied to the states. Cardozo reasoned that the essence of due process was a fair trial, and Palko’s second trial did not violate that principle.

Significance of Palko v. Connecticut

Palko v. Connecticut is significant for several reasons:

Articulation of a Standard: The case provided a clear standard for determining which rights were fundamental and thus applicable to the states. This standard, often referred to as the "fundamental rights" test, focused on whether a right was essential to a system of ordered liberty.
Rejection of Total Incorporation: The Court explicitly rejected the theory of total incorporation, which argued that all provisions of the Bill of Rights should apply to the states. Instead, the Court favored a selective approach, incorporating only those rights deemed fundamental.
Influence on Future Cases: While the specific holding in Palko regarding double jeopardy was later overturned, the case’s articulation of the fundamental rights test influenced subsequent incorporation cases.

The Shift Towards Selective Incorporation

The framework established in Palko v. Connecticut guided the Court for several decades. However, over time, the Court began to broaden its interpretation of which rights were considered fundamental. This shift led to the modern doctrine of selective incorporation.

Duncan v. Louisiana (1968): The Right to a Jury Trial

Duncan v. Louisiana marked a significant shift in the Court’s approach to incorporation. Gary Duncan, a Black teenager, was convicted of simple battery in Louisiana and sentenced to 60 days in prison and a $150 fine. He had been denied a jury trial, which he argued violated his Sixth Amendment rights.

The Supreme Court reversed Duncan’s conviction, holding that the Sixth Amendment right to a jury trial in criminal cases is fundamental and applicable to the states through the Fourteenth Amendment. The Court reasoned that a jury trial is essential to preventing oppression by the government and ensuring fair trials.

The Duncan Standard

The Duncan Court articulated a new standard for determining whether a right is fundamental: whether the right is "fundamental to the American scheme of justice." This standard was broader than the "ordered liberty" test articulated in Palko. The Court emphasized that the right to a jury trial was deeply rooted in American history and tradition and was essential for preventing government oppression.

Impact of Duncan v. Louisiana

Duncan v. Louisiana had a profound impact on the incorporation doctrine:

Broadening of Fundamental Rights: The case broadened the scope of fundamental rights that apply to the states, signaling a move away from the more restrictive approach of Palko.
Shift Towards Selective Incorporation: Duncan solidified the doctrine of selective incorporation, where rights are incorporated on a case-by-case basis, depending on whether they are fundamental to the American scheme of justice.
Overruling of Palko in Practice: While Duncan did not explicitly overrule Palko, it effectively undermined its holding. The Duncan Court’s emphasis on the importance of jury trials and its broader definition of fundamental rights signaled a new direction in incorporation jurisprudence.

The Legacy of Selective Incorporation

Since Duncan v. Louisiana, the Supreme Court has continued to apply the doctrine of selective incorporation, incorporating most of the criminal procedure protections in the Bill of Rights.

Rights Incorporated

Some of the key rights that have been incorporated include:

First Amendment: Freedom of speech, press, religion, and assembly.
Fourth Amendment: Protection against unreasonable searches and seizures.
Fifth Amendment: Protection against self-incrimination and double jeopardy.
Sixth Amendment: Right to counsel, right to a speedy and public trial, right to confront witnesses, and right to compulsory process for obtaining witnesses.
Eighth Amendment: Protection against cruel and unusual punishment.

Rights Not Incorporated

While most of the Bill of Rights has been incorporated, a few provisions have not been applied to the states:

Third Amendment: Protection against quartering soldiers in private homes.
Fifth Amendment: Right to indictment by a grand jury in criminal cases.
Seventh Amendment: Right to a jury trial in civil cases.
Second Amendment: The extent to which the Second Amendment applies to the states has been subject to ongoing debate and litigation, particularly after the Supreme Court's decision in McDonald v. City of Chicago (2010), which incorporated the right to bear arms for self-defense.

Modern Applications

The doctrine of selective incorporation continues to shape constitutional law today. It ensures that states cannot infringe upon fundamental rights protected by the Bill of Rights. This has significant implications for areas such as criminal justice, freedom of speech, and privacy rights.

Conclusion: Duncan v. Louisiana and the Establishment of Selective Incorporation

While the journey towards selective incorporation involved numerous Supreme Court cases, Duncan v. Louisiana stands out as the case that solidified the modern doctrine. Duncan broadened the definition of fundamental rights and established that the right to a jury trial is essential to the American scheme of justice, thereby applying it to the states through the Fourteenth Amendment.

The legacy of Duncan v. Louisiana is profound. It ensures that the protections of the Bill of Rights are not limited to the federal government but also extend to state governments, safeguarding the fundamental rights and liberties of all Americans. The selective incorporation doctrine, as shaped by Duncan and subsequent cases, remains a cornerstone of American constitutional law, continually influencing the balance between individual rights and state power.

FAQ on Selective Incorporation

What is selective incorporation?

Selective incorporation is a constitutional doctrine through which parts of the United States Bill of Rights are made applicable to the states through the Due Process Clause of the Fourteenth Amendment. This ensures that states cannot pass laws that infringe on the fundamental rights of citizens.

Why is selective incorporation important?

Selective incorporation is important because it extends the protections of the Bill of Rights to the state level, ensuring that states cannot violate the fundamental rights and liberties of individuals.

What was Palko v. Connecticut’s role in selective incorporation?

Palko v. Connecticut (1937) articulated a standard for determining which rights were fundamental and thus applicable to the states. The Court held that only those rights "of the very essence of a scheme of ordered liberty" should be incorporated. While Palko established a restrictive approach, it set the stage for future developments in the doctrine.

How did Duncan v. Louisiana change the course of selective incorporation?

Duncan v. Louisiana (1968) broadened the definition of fundamental rights, holding that the right to a jury trial is essential to the American scheme of justice. This case marked a shift towards a more inclusive approach to incorporation and solidified the modern doctrine of selective incorporation.

Which rights have not been incorporated?

Some of the rights that have not been incorporated include the Third Amendment (protection against quartering soldiers), the Fifth Amendment right to indictment by a grand jury, and the Seventh Amendment right to a jury trial in civil cases.

What is the difference between selective incorporation and total incorporation?

Selective incorporation is the doctrine that incorporates rights on a case-by-case basis, depending on whether they are fundamental. Total incorporation, on the other hand, argues that all provisions of the Bill of Rights should automatically apply to the states. The Supreme Court has favored selective incorporation over total incorporation.

How does the Fourteenth Amendment relate to selective incorporation?

The Fourteenth Amendment, particularly the Due Process Clause, is the vehicle through which selective incorporation occurs. The Supreme Court interprets the Due Process Clause to mean that states cannot deprive individuals of fundamental rights protected by the Bill of Rights.

What is the “fundamental rights” test?

The "fundamental rights" test is a standard used by the Supreme Court to determine whether a right is essential to a system of ordered liberty and thus applicable to the states. This test was articulated in Palko v. Connecticut and refined in subsequent cases like Duncan v. Louisiana.

How does selective incorporation affect criminal justice?

Selective incorporation has a significant impact on criminal justice by ensuring that states must adhere to the same constitutional protections as the federal government. This includes rights such as the right to counsel, protection against unreasonable searches and seizures, and the right to a fair trial.

What is the significance of McDonald v. City of Chicago (2010) in the context of selective incorporation?

McDonald v. City of Chicago (2010) incorporated the Second Amendment right to bear arms for self-defense, applying it to the states. This case was significant because it addressed a right that had been subject to ongoing debate and litigation, further solidifying the scope of selective incorporation.