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Note on Incorporation
The basic problem that incorporation solves is really simple: the Bill of Rights only, on its terms, applies to the federal government. It's full of lines like "Congress shall make no law," rather than "the states shall make no law."
Accordingly, there's nothing on its face forbidding the states from, e.g., conducting unreasonable searches, levying cruel and unusual punishments, establishing churches, coercing confessions, and so on, and so on. And this makes sense: the Constitution was supposed to be primarily about enumerating and limiting federal power, right? At the time of the framing, the states had their own constitutions, and those were live things---in Virginia, for example, there were real serious debates about religious freedom in the terms of state law and state ideals; these were rights guaranteed in state courts. (At least, that's one conventional story.)
Like so much else in this course, the Reconstruction Amendments changed all that. After they were enacted, the question quickly arose: did the Reconstruction Amendments make the Bill of Rights apply to the states? That's called the "incorporation" question.
**Privileges and Immunities: the Supreme Court's biggest screwup?**
If you've paid attention to the text of the 14th Amendment, you might immediately have noticed a piece of text that suggests that it does. The second sentence in section 1, the sentence that includes the Due Process and Equal Protection Clauses, starts with another clause, the Privileges and Immunities clause. It reads: "No state shall make or enforce any law which shall abridge the privileges of immunities of citizens of the United States[.]"
Now, here's one natural. The Bill of Rights. It describes privileges and immunities of citizens of the United States. To be sure, its protections apply to non-citizens as well, but one thing we ought to be able to say about it is that it also describes the things you're entitled to in this country at a minimum as a citizen---free speech, not having soldiers quartered in your homes, etc. I mean, not having troops lying around eating all my food and scaring the cat---'Murica, in a nutshell, right? Indeed, some Supreme Court justices have thought just this. Most notable, of course, is our greatest hard-line textualist justice, Hugo Black. As always, he's the one who actually likes to read the constitution, and he thought the privileges and immunities clause incorporated the Bill of Rights. Today, Justice Thomas is particularly associated with this position.
However in the Slaughterhouse cases, 83 U.S. 36 (1873), the Court held that the privileges and immunities clause didn't incorporate the Bill of Rights. It also stated---in a case about a state's granting monopoly rights to slaughterhouses, for goodness sakes---a really narrow interpretation of the Reconstruction Amendments, basically as only to protect former slaves. All the rest of its other holdings (or dicta, or just general interpretations) have been overturned, but the privileges and immunities clause holding hasn't been. With only one exception, the privileges and immunities clause of the 14th amendment has been a dead letter since then. (The exception is an interstate travel question: Saenz v. Roe, 526 U.S. 489 (1999) struck down a law restricting welfare benefits for new residents on the basis of the privileges and immunities clause. But this line of reasoning hasn't really been carried out further.)
**Due Process Incorporation**
So when the Supreme Court turned around at the end of the 19th and beginning of 20th centuries and actually started applying Bill of Rights protections to the states, they used the Due Process Clause! The Bill of Rights isn't part of the privileges and immunities of citizens, but it is, according to the wise heads on the Supreme Court, part of the liberty guaranteed by the Due Process Clause! And never mind that on its face all that clause guarantees is process; we'll just use it as a second-choice textual hook for our incorporation doctrine. (We'll see this happen again when we get to fundamental rights, only there, the Due Process Clause shoves aside the 9th Amendment rather than the Privileges and Immunities Clause.)
So they started incorporating the Bill of Rights through the Due Process Clause. And then the debates started.
The key debate was between total incorporationists and partial incorporationists (and a third position which we'll take up a bit more deeply in the context of fundamental rights, which we could call "liberty guaranteed by the 14th amendment, full stop," or "incorporation as unenumerated fundamental rights doctrine.") As usual, Justice Black lost with his straightfoward and blunt (and sensible) position, viz. total incorporation.
So instead of incorporating the whole thing, the Court incorporated the Bill of Rights in drips and drabs, and still hasn't incorporated it all. In particular, the Court has explicitly held that the civil jury trial right in the 7th amendment hasn't been incorporated, and neither has the grand jury in criminal cases. Those are the most important ones, where the Court explicitly held "no incorporation," but there are also a few provisions where the Court hasn't reached the question, like the 3rd amendment (of course). But the broad idea, which we'll see in detail when we get to our case for this material, is that the Court incorporates the stuff that seems really really important. As I noted earlier, we see language about "fundamental rights" making an appearance here, and it will connect closely to our next module.
Incidentally, lest you think that surely by now the Court would have done all the incorporating it means to do, it may interest you to learn that on February 20, 2019, the Court finally got around to incorporating the 8th Amendment's Excessive Fines Clause in [Timbs v. Indiana](https://www.scotusblog.com/case-files/cases/timbs-v-indiana/).
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