Incorporation

• Incorporation controversy involves lengthy debate over whether the bill of rights is applicable to the states.

• Present law holds that only certain provisions apply to the states, but SCt has now incorporated almost all of the bill of rights into the 14^th Amendment.

• Note the importance of fear of judicial discretion in this debate. Black-Frankfurter debate:

• Black and Frankfurter (both FDR appointees) agree that such discretion must be limited, but they disagree on how the thing is to be accomplished.

• Black wanted total incorporation because it allows for so little discretion.

• Frankfurter thought that it was possible rationally to decide which rights were incorporable.

Barron V. Mayor & City Council of Baltimore

• Marshall 1833. Not applicable to the states. SCt held that, although the word “Congress” only appears at the beginning of the First Amendment, the entire Bill of Rights were not directly binding upon state governments. The Bill or Rights applies only to the federal, and not to state, action.

• Reasoning. Marshall supported his argument by reference to text, history, structure, and consensus. Marshall reasoned that “had the framers of the Bill of Rights Amendments intended them to be limitations on the powers of state governments, they would have expressed that intention in plain and intelligible language.” This conclusion has generally been accepted as being historically justified.

Murray V. Hoboken Land & Improvement Co.

• Curtis 1856. Construing the due process clause of the 5^th Amendment, this case held that the meaning of “due process” must be ascertained by reference to “those settled usages and modes of proceeding existing in the common and statute law of England.”

• On this reading, the ambiguous textual provision incorporates by reference certain traditions of fairness, and guarantees that those traditions will not be violated.

Twining V. New Jersey

• 1908. Pointed to a less historical approach to the fundamental-liberties question, asking whether the asserted right “inheres in the very idea of free government.”

• Here, the source of the SCt’s reasoning appears to be political philosophy rather than history: the “great first principles in the social compact” invoked by Justice Chase over a century earlier in Calder v. Bull.

Palko V. Connecticut – Double jeopardy

• Cardozo 1937. Continued the philosophical approach of Twinning, asking whether the asserted right is “of the very essence of a scheme of ordered liberty,” so that there could not be a fair and enlightened system of justice without it.

• However, he also gestured toward history by mentioning “the tradition and conscience of our people as to be ranked fundamental.”

• Cardozo expressly adopted the idea of a hierarchy of rights, with only the most highly valued rights being enforceable by the federal courts.

• The right at issue in Palko, the ban on double jeopardy, was found not to be sufficiently fundamental (at least in the way the ban was violated here, by permitting the state to appeal from an acquittal in a criminal case and then to retry the D.)