Which amendments have been selectively incorporated to the states using the 14th Amendment?

Fourteenth Amendment, Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Following the ratification of the Fourteenth Amendment, litigants disadvantaged by state laws and policies first resorted unsuccessfully to the Privileges or Immunities Clause of § 1 for judicial protection.1 Then, claimants seized upon the Due Process Clause of the Fourteenth Amendment as guaranteeing certain fundamental and essential safeguards, without pressing the point of the applicability of the Bill of Rights.2 It was not until 1887 that a litigant contended that, although the Bill of Rights had not limited the states, nonetheless, to the extent that they secured and recognized the fundamental rights of man, they were privileges and immunities of citizens of the United States and were now protected against state abridgment by the Fourteenth Amendment.3 This case the Court decided on other grounds, but in a series of subsequent cases it confronted the argument and rejected it,4 though over the dissent of the elder Justice Harlan, who argued that the Fourteenth Amendment in effect incorporated the Bill of Rights and made them effective restraints on the states.5 Until 1947, this dissent made no headway,6 but in Adamson v. California7 a minority of four Justices adopted it. Justice Black, joined by three others, contended that his researches into the history of the Fourteenth Amendment left him in no doubt that the language of the first section of the Fourteenth Amendment, taken as a whole, was thought by those responsible for its submission to the people, and by those who opposed its submission, sufficiently explicit to guarantee that thereafter no state could deprive its citizens of the privileges and protections of the Bill of Rights.8 Scholarly research stimulated by Justice Black’s view tended to discount the validity of much of the history recited by him and to find in the debates in Congress and in the ratifying conventions no support for his contention.9 Other scholars, going beyond the immediate debates, found in the pre- and post-Civil War period a substantial body of abolitionist constitutional thought which could be shown to have greatly influenced the principal architects, and observed that all three formulations of § 1, privileges and immunities, due process, and equal protection, had long been in use as shorthand descriptions for the principal provisions of the Bill of Rights.10

Unresolved perhaps in theory, the controversy in fact has been mostly mooted through the selective incorporation of a majority of the provisions of the Bill of Rights.11 This process seems to have had its beginnings in an 1897 case in which the Court, without mentioning the Just Compensation Clause of the Fifth Amendment, held that the Fourteenth Amendment’s Due Process Clause forbade the taking of private property without just compensation.12 Then, in Twining v. New Jersey13 the Court observed 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 nature that they are included in the conception of due process of law. And, in Gitlow v. New York,14 the Court in dictum said: 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. After quoting the language set out above from Twining v. New Jersey, the Court in 1932 said that a consideration of the nature of the right and a review of the expressions of this and other courts, makes it clear that the right to the aid of counsel is of this fundamental character.15 The doctrine of this period was best formulated by Justice Cardozo, who observed that the Due Process Clause of the Fourteenth Amendment might proscribe a certain state procedure, not because the proscription was spelled out in one of the first eight amendments, but because the procedure offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,16 because certain proscriptions were implicit in the concept of ordered ‘liberty.’17

As late as 1958, Justice Harlan asserted in an opinion of the Court that a certain state practice fell afoul of the Fourteenth Amendment because [i]t is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech . . . .18

But this process of absorption into due process, of rights that happened also to be specifically named in the Bill of Rights, came to be supplanted by a doctrine that had for a time co-existed with it: the doctrine of selective incorporation. This doctrine holds that the Due Process Clause incorporates the text of certain of the provisions of the Bill of Rights. Thus, in Malloy v. Hogan,19 Justice Brennan wrote: We have held that the guarantees of the First Amendment, the prohibition of unreasonable searches and seizures of the Fourth Amendment, and the right to counsel guaranteed by the Sixth Amendment, are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment. And Justice Clark wrote: First, this Court has decisively settled that the First Amendment’s mandate that ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof’ has been made wholly applicable to the States by the Fourteenth Amendment.20 Similar language asserting that particular provisions of the Bill of Rights have been applied to the states through the Fourteenth Amendment’s Due Process Clause may be found in numerous cases.21 Most of the provisions have now been so applied.22

• First Amendment | Religion | Free Exercise: Hamilton v. Regents, 293 U.S. 245, 262 (1934); Cantwell v. Connecticut, 310 U.S. 296, 300, 303 (1940).

• First Amendment | Religion | Establishment: Everson v. Board of Education, 330 U.S. 1, 3, 7, 8 (1947); Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203 (1948).

• First Amendment | Religion | Speech: Gitlow v. New York, 268 U.S. 652, 666 (1925); Fiske v. Kansas, 274 U.S. 380 (1927); Stromberg v. California, 283 U.S. 359 (1931).

• First Amendment | Religion | Press: Near v. Minnesota ex rel. Olson, 283 U.S. 697, 701 (1931).

• First Amendment | Religion | Assembly: DeJonge v. Oregon, 299 U.S. 353 (1937).

• First Amendment | Religion | Petition: DeJonge v. Oregon, 299 U.S. at 364, 365; Hague v. CIO, 307 U.S. 496 (1939); Bridges v. California, 314 U.S. 252 (1941).

• Second Amendment | Right to Keep and Bear Arms: McDonald v. Chicago, 561 U.S. ___, No. 08-1521, slip op. (2010).

• Fourth Amendment | Search and Seizure: Wolf v. Colorado, 338 U.S. 25 (1949); Mapp v. Ohio, 367 U.S. 643 (1961).

• Fifth Amendment | Double Jeopardy: Benton v. Maryland, 395 U.S. 784 (1969); Ashe v. Swenson, 397 U.S. 436 (1970) (collateral estoppel).

• Fifth Amendment | Self-Incrimination: Malloy v. Hogan, 378 U.S. 1 (1964); Griffin v. California, 380 U.S. 609 (1965).

• Fifth Amendment | Just Compensation: Chicago, B. & Q. R.R. v. City of Chicago, 166 U.S. 226 (1897).

• Sixth Amendment | Speedy Trial: Klopfer v. North Carolina, 386 U.S. 213 (1967).

• Sixth Amendment | Public Trial: In re Oliver, 333 U.S. 257 (1948).

• Sixth Amendment | Jury Trial: Duncan v. Louisiana, 391 U.S. 145 (1968).

• Sixth Amendment | Impartial Jury: Irvin v. Dowd, 366 U.S. 717 (1961); Turner v. Louisiana, 379 U.S. 466 (1965).

• Sixth Amendment | Notice of Charges: In re Oliver, 333 U.S. 257 (1948).

• Sixth Amendment | Confrontation: Pointer v. Texas, 380 U.S. 400 (1965); Douglas v. Alabama, 380 U.S. 415 (1965).

• Sixth Amendment | Compulsory Process: Washington v. Texas, 388 U.S. 14 (1967).

• Sixth Amendment | Counsel: Powell v. Alabama, 287 U.S. 45 (1932); Gideon v. Wainwright, 372 U.S. 335 (1963).

• Eighth Amendment | Excessive Bail: McDonald v. City of Chicago, 561 U.S. 742, 764 n.12 (2010); Schilb v. Kuebel, 404 U.S. 357, 365 (1971).

• Eighth Amendment | Excessive Fines: Timbs v. Indiana, 586 U.S. ____, No. 17-1091, slip op. at 2 (2019).

• Eighth Amendment | Cruel and Unusual Punishment: Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947); Robinson v. California, 370 U.S. 660 (1962).

Provisions not applied are:

• Third Amendment | Quartering Troops in Homes: No cases.

• Fifth Amendment | Grand Jury Indictment: Hurtado v. California, 110 U.S. 516 (1884).

• Seventh Amendment: Jury trial in civil cases in which value of controversy exceeds $20—Cf. Adamson v. California, 332 U.S. 46, 64–65 (1947) (Justice Frankfurter concurring). See Minneapolis & St. L. R.R. v. Bombolis, 241 U.S. 211 (1916).

The modern doctrine of incorporation, like some of the earlier cases described above, asks whether a right is both ‘fundamental to our scheme of ordered liberty’ and ‘deeply rooted in this Nation’s history and tradition.’23

Aside from the theoretical and philosophical considerations raised by the question whether the Bill of Rights is incorporated into the Fourteenth Amendment or whether due process subsumes certain fundamental rights that are named in the Bill of Rights, the principal relevant controversy is whether, once a guarantee or a right set out in the Bill of Rights is held to be a limitation on the states, the same standards that restrict the Federal Government restrict the states. The majority of the Court has consistently held that the standards are identical, whether the Federal Government or a state is involved,24 and has rejected the notion that the Fourteenth Amendment applies to the State only a ‘watered-down, subjective version of the individual guarantees of the Bill of Rights.’25 Those who have argued for the application of a dual-standard test of due process for the Federal Government and the states, most notably Justice Harlan,26 but including Justice Stewart,27 Justice Fortas,28 Justice Powell,29 and Justice Rehnquist,30 have not only rejected incorporation, but have also argued that, if the same standards are to apply, the standards previously developed for the Federal Government would have to be diluted in order to give the states more leeway in the operation of their criminal justice systems.31 The Supreme Court, however, has since clarified that incorporated rights are generally enforced according to federal standards.32