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14th amendment

585 Views 10 Replies 6 Participants Last post by  wsweeks2
Can someone who knows about this subject help educate me? I know that the 14th amendment only selectively applies the bill of rights to the states and that not all of the bill of rights are incorporated into the states, but I don't know why. Why does it require a SC decision to incorporate each of these natural rights when it appears, to me at least, that the 14th amendment was very clear on intending to do so via constitutional amendment.

What exactly am I overlooking here?
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I believe that there has to be a case addressing each amendment for incorporation via the 14th amendment, before that happpens the amendment does not apply to state action. This is why currently the 2nd amendment does not apply to the states because there has never been such an incorporation case.

The SCOTUS can't just rule by fiat, they have to have a case that addresses a constitutional issue and then incorporate it. See: Gideon v. Wainright or Mapp v. Ohio.

There are even some of the amendments that have only been half incorprated, half of it applies to the states and half does not.
GAGunOwner said:
There are even some of the amendments that have only been half incorprated, half of it applies to the states and half does not.
Did a little googling...

Here's a good example. The 5th amendment applies to the states but not the part about a right to an indictment by a grand jury.
Look over this whole page: ... _of_Rights)

Here's an interesting excerpt:

Amendment I
Establishment of Religion
Everson v. Board of Education, 330 U.S. 1 (1947).
Free Exercise of Religion
Cantwell v. Connecticut, 310 U.S. 296 (1940).
Freedom of Speech
Gitlow v. New York, 268 U.S. 652 (1925).
Freedom of the press
Near v. Minnesota, 283 U.S. 697 (1931).
Freedom of assembly
DeJonge v. Oregon, 299 U.S. 353 (1937).
Petition for redress of grievances
It appears that no one case incorporates this right individually. See Edwards v. South Carolina, 372 U.S. 229 (1963): After listing several First Amendment rights, including redress of grievances, the Court wrote: "It has long been established that these First Amendment freedoms are protected by the Fourteenth Amendment from invasion by the States."
Freedom of association
NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958): Although the First Amendment lists no "right of association", "Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly."
Amendment II
Right to bear arms
Has not been incorporated. According to the D.C. Circuit Court of Appeals in the case of Parker v. District of Columbia, "The Second Amendment is one of the few Bill of Rights provisions that has not yet been held to be incorporated through the Fourteenth Amendment." All supreme court jurisprudence on the Second Amendment predates Due Process incorporation doctrine except US v Miller 307 U.S. 174 (US 1939), which was a challenge to a federal law unrelated to incorporation. Incorporation of Second Amendment was rejected in Presser v. Illinois, 116 U.S. 252 (1886) and United States v. Cruikshank, 92 U.S. 542 (1875). However Duncan v. Louisiana 391 U.S. 145 (1968), in dicta regarding the interpretation of Palko v. Connecticut 302 U.S. 319 (1937), indicates that all Amendments dealing with "ordered liberty" should be regarded as being incorporated according to the majority concurrence by Justice Black.[2]
Amendment III
Freedom from quartering of soldiers
Has not been incorporated. But Griswold v. Connecticut, 116 U.S. 252 (1965): mentions this right indirectly: ". . . pecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy. . . . The Third Amendment in its prohibition against the quartering of soldiers 'in any house' in time of peace without the consent of the owner is another facet of that privacy."
Amendment IV
Unreasonable search and seizure
Wolf v. Colorado, 338 U.S. 25 (1949): The Court held that although the Fourth Amendment applied to the states, the exclusionary rule (unconstitutionally obtained evidence cannot be used at trial), which the Court had been held to be an essential corollary to the Fourth Amendment, did not. The Court later incorporated the exclusionary rule in Mapp v. Ohio, 367 U.S. 643 (1961).
Warrant requirements
Ker v. California, 374 U.S. 23 (1963); Aguilar v. Texas, 378 U.S. 108 (1964).
Amendment V
Presentment or indictment of grand jury
Has not been incorporated. Hurtado v. California, 110 U.S. 516 (1884).
Double jeopardy
Benton v. Maryland, 395 U.S. 784 (1969).
Malloy v. Hogan, 378 U.S. 1 (1964).
Miranda warning
Miranda v. Arizona, 384 U.S. 436 (1966): The Court held that what is now called the Miranda warning was an essential corollary to the Fifth Amendment right against self-incrimination and the Sixth Amendment right to assistance of counsel.
Taking of private property
Chicago, Burlington & Quincy Railway Co. v. Chicago, 166 U.S. 226 (1897). (Strictly speaking, this case appears to have been decided on the basis of the Fourteenth Amendment itself, without recourse to incorporation of the Fifth Amendment. Nevertheless, a number of subsequent cases have cited it for the proposition that the Takings Clause of the Fifth Amendment has been made applicable to the states via the Fourteenth Amendment. E.g., Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155 (1980).
Amendment VI
Speedy trial
Klopfer v. North Carolina, 386 U.S. 213 (1967).
Public trial
In re Oliver, 333 U.S. 257 (1948).
Trial by impartial jury
Duncan v. Louisiana, 391 U.S. 145 (1968): The Court held that in state criminal proceedings, where a person could be sentenced to a significant time in prison, he or she had a right to a trial by jury. However, there is no similar right in juvenile delinquency trials. McKeiver v. Pennsylvania, 403 U.S. 528 (1971).
Unanimous jury verdict
Burch v. Louisiana, 441 U.S. 130 (1979): The Court has never incorporated the Sixth Amendment's implicit guarantee that convictions be obtained only from unanimous twelve-member juries, but in Burch, the Justices did hold that when as few as six jurors are empanelled, their verdict must be unanimous.
Notice of accusation
Rabe v. Washington, 405 U.S. 313 (1972).
Confrontation of adverse witnesses
Pointer v. Texas, 380 U.S. 400 (1965).
Compulsory process to obtain witness testimony
Washington v. Texas, 388 U.S. 14 (1967).
Assistance of counsel in capital criminal cases
Powell v. Alabama, 287 U.S. 45 (1932).
Assistance of counsel in all felony cases
Gideon v. Wainwright, 372 U.S. 335 (1963).
Assistance of counsel in imprisonable misdemeanor cases
Argersinger v. Hamlin, 407 U.S. 25 (1972).
Miranda warning
(See above.)
Amendment VII
Jury trial in civil cases
Has not been incorporated. See Curtis v. Loether, 415 U.S. 189 (1974).
Amendment VIII
Excessive bail
Has not been incorporated. Roper v. Simmons, 543 U.S. 551 (2005), quotes the Eighth Amendment in full, then says, "The provision is applicable to the States through the Fourteenth Amendment." However, the cases cited by the Court do not address bail.
Excessive fines
Cooper Industries v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001).
Cruel and unusual punishment
Robinson v. California, 370 U.S. 660 (1962).
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