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Incorporation of the Bill of Rights is the legal doctrine by which portions of the U.S. Bill Of Rights are applied to the states through the Due Process Clause of the Fourteenth Amendment . Most of those portions of the Bill of Rights were incorporated by a series of United States Supreme Court decisions in the 1940s, 1950s, and 1960s. Though the Bill of Rights was originally written to limit only the power of the federal government, the Supreme Court has ruled that most of its guarantees protect citizens against state governments. Some have suggested that the Privileges Or Immunities Clause of the Fourteenth Amendment would be a more appropriate textual source of incorporation, but the Privileges or Immunities Clause has not been used to incorporate the Bill of Rights. This has meant that the Due Process Clause was the means by which incorporation occurred. SLAUGHTER-HOUSE CASES It is often said that the '' has pointed out that the ''Slaughter-House Cases'' did not directly involve any right enumerated in the Constitution: state law under consideration in the Slaughter-House cases was only challenged as one which authorized a monopoly, and the brief for the challenger properly conceded that there was "no direct constitutional provision against a monopoly." The argument did not invoke any specific provision of the Bill of Rights, but urged that the state monopoly statute violated "the natural right of a person" to do business and engage in his trade or vocation.Adamson v. California, [http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=332&page=46 332 U.S. 46 (1947) (Black, J., dissenting). Thus, in Black's view, the ''Slaughterhouse Cases'' should not impede incorporation of the Bill of Rights against the states, via the Privileges or Immunities Clause. Some scholars go even further, and argue that the ''Slaughterhouse Cases'' affirmatively supported incorporation of the Bill of Rights against the states.See Wildenthal, Bryan. “ The Lost Compromise: Reassessing the Early Understanding in Court and Congress on Incorporation of the Bill of Rights in the Fourteenth Amendment ". ''Ohio State Law Journal'', Vol. 61 (2000). In dicta, Justice Miller's opinion in ''Slaughterhouse'' went so far as to acknowledge that the "right to peaceably assemble and petition for redress of grievances ... are rights of the citizen guaranteed by the Federal Constitution," although in context Miller may have only been referring to assemblies for petitioning the federal government.'' Slaughter-House Cases '', 83 U.S. 36 (1873). ORIGINS The genesis of incorporation has been traced back to either '' Chicago, Burlington & Quincy Railway Co. V. Chicago '' (1897) in which the Supreme Court appeared to require some form of Just Compensation for property appropriated by state or local authorities (although there was a state statute on the books that provided the same guarantee) or, more commonly, to '' Gitlow V. New York '' (1925), in which the Court expressly held that States were bound to observe First Amendment Free Speech protections. Since that time, the Court has steadily incorporated most of the significant provisions of the Bill of Rights. Provisions that the Supreme Court either has refused to incorporate, or whose possible incorporation has not yet been addressed, are the Second Amendment right to bear arms, the Fifth Amendment right to an indictment by a Grand Jury , the Seventh Amendment right to a Jury Trial in civil lawsuits, and the Sixth Amendment 's implicit command that a criminal jury can consist only of twelve members and must reach a unanimous verdict in order to convict. Incorporation applies both procedural and substantive guarantees to the states. Thus, procedurally, only a jury can convict a defendant of a serious crime, since the Sixth Amendment jury-trial right has been incorporated against the states; substantively, for example, states must recognize the First Amendment prohibition against a state-established religion, regardless of whether state laws and constitutions offer such a prohibition. The Supreme Court has declined, however, to apply new procedural constitutional rights retroactively against the states in criminal cases (''Stone v. Powell'') with limited exceptions, and it has waived constitutional requirements if the states can prove that a constitutional violation was "harmless beyond a reasonable doubt." There are, however, some substantive guarantees whose incorporation the Supreme Court has not yet ruled on— for example, the Third Amendment right against quartering soldiers in private homes except in wartime as provided by law. The Court has declined to take full judicial notice of the clear statements of the original intent for the 14th Amendment as made by the author and sponsor of the bill for the amendment within the US Congress, Rep. John Bingham of Ohio. Bingham disliked the fact that southern states were continuing to violate the rights of Blacks even after the end of the War Between the States (US Civil War), and wished for some means for the Congress to be able to punish the states for such violations. However, he felt that the US Congress was restrained from doing so, since the Supreme Court had previously ruled in the 1833 case ''Barron v. Baltimore'' that the Bill of Rights only limited actions of the federal government, and not those of the states. Therefore, Bingham proposed an amendment to the Constitution which would require the states to honor the immunities and privileges of US citizens as guaranteed within both the body and the Bill of Rights of the US Constitution, and which would also grant to Congress the power to enforce this requirement. The text of the 14th Amendment does not except any of the civil rights of the Bill of Rights from inclusion or incorporation, but rather applies all of the immunities and privileges of the Bill of Rights to the states. The Court, however, has not. See Congressional Globe, 39th Congress, 1st Session, 1866. {Link without Title} Partial versus Total incorporation In the 1940's and 1960's the Supreme Court gradually issued a series of decisions incorporating several of the specific rights from the Bill of Rights, so as to be binding upon the States.Steffen W. Schmidt, Mack C. Shelley, Barbara A. Bardes: ''American Government and Politics Today'', Page 71. Thomson Wadsworth, 2004. An alternate school of thought championed by " that might be based on the Ninth Amendment . Black felt that his formulation eliminated any arbitrariness or caprice in deciding what the Fourteenth Amendment ought to protect, by sticking to words already found in the Constitution. Although Black was willing to invalidate federal statutes on federalism grounds, he was not inclined to read any of the first eight amendments as states' rights provisions as opposed to individual rights provisions. Selective incorporation Justice Felix Frankfurter , however, felt that the incorporation process ought to be incremental, and that the federal courts should only apply those sections of the Bill of Rights whose abridgment would "shock the conscience," as he put it in '' Rochin V. California '' (1952). Frankfurter's incrementalist approach did carry the day, but the end result is very nearly what Justice Black advocated, with the exceptions noted above. WHICH RIGHTS HAVE BEEN INCORPORATED? Many of the provisions of the First Amendment were applied to the States in the 1930s and 1940s, but most of the procedural protections provided to criminal defendants were not enforced against the States until the Warren Court of the 1960s, famous for its concern for the rights of those accused of crimes, brought state standards in line with federal requirements. The following list enumerates, by amendment and individual clause, the Supreme Court cases that have incorporated the rights contained in the Bill of Rights. (The Ninth Amendment is not listed; its wording indicates that it "is not a source of rights as such; it is simply a rule about how to read the Constitution." Laurence H. Tribe, ''American Constitutional Law'' 776 n. 14 (2nd ed. 1998). The Tenth Amendment is also not listed; by its wording, it is a reservation of rights to the states.)
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