Note: This is an educational course, not legal advice.
The Slaughter-House Cases closed the Privileges or Immunities door. Over the next century the Court used the Due Process Clause instead: "nor shall any State deprive any person of life, liberty, or property, without due process of law." If a right in the Bill of Rights is part of the "liberty" that due process protects, then it binds the states too. This is called incorporation.
| Approach | Main voice | What it says |
|---|---|---|
| Fundamental fairness | Justice Cardozo in Palko v. Connecticut (1937) | apply only rights "implicit in the concept of ordered liberty"; decide case by case |
| Total incorporation | Justice Black, dissenting in Adamson v. California (1947) | the Fourteenth Amendment applies the whole Bill of Rights to the states |
| Selective incorporation (the Court's method) | Duncan v. Louisiana (1968) | apply a right if it is fundamental to "our scheme of ordered liberty" and deeply rooted; once applied, it applies against states with the same content as against the federal government |
Why it works
Selective incorporation won in the 1960s, when the Court applied most of the criminal procedure rights one by one. Duncan v. Louisiana (1968) asked whether a right is "fundamental to the American scheme of justice." McDonald v. City of Chicago (2010) added that a right is incorporated if it is fundamental to our scheme of ordered liberty or "deeply rooted in this Nation's history and tradition," and confirmed that an incorporated right applies the same way to the states as to the federal government. Timbs v. Indiana (2019) (Excessive Fines) and Ramos v. Louisiana (2020) (a unanimous jury) are recent steps. In McDonald only Justice Thomas would have used the Privileges or Immunities Clause instead; the plurality declined to revisit Slaughter-House.
Key idea
Selective incorporation: through the Fourteenth Amendment's Due Process Clause, a Bill of Rights guarantee applies to the states if it is fundamental to our scheme of ordered liberty and deeply rooted in history and tradition, and then it applies with the same content as against the federal government.
Worked example: Is it incorporated?
A state trial court refuses a defendant's request for a unanimous jury in a felony case, saying the Sixth Amendment's unanimity rule binds only federal courts. Correct?
- The Sixth Amendment jury right was incorporated in Duncan v. Louisiana (1968).
- Ramos v. Louisiana (2020) held that the right requires a unanimous verdict to convict of a serious offense, and that incorporated rights mean the same thing against the states.
- Ramos overruled Apodaca v. Oregon (1972), which had allowed nonunanimous state juries.
Answer: No; after Ramos, state felony convictions need a unanimous jury.
Worked example: Which clause carried it?
In McDonald v. Chicago, which clause did the plurality use to apply the Second Amendment to the states, and which did Justice Thomas prefer?
- The plurality followed the Court's long practice: the Due Process Clause.
- Justice Thomas concurred in the judgment and argued for the Privileges or Immunities Clause.
Answer: Plurality: Due Process. Thomas: Privileges or Immunities.
Common mistake
Saying incorporation came through the Privileges or Immunities Clause. The Court has used the Due Process Clause; in McDonald only Justice Thomas would have used Privileges or Immunities. Another slip: thinking every right is incorporated. A few are not: the Third Amendment's quartering rule has not been addressed by the Court, the Fifth Amendment's grand jury requirement and the Seventh Amendment's civil jury right do not bind the states.