Thoughts on the 14th Amendment cases

The 14th Amendment Incorporation Doctrine cases are a mess. I'm no big brained Ivy League lawyer, mind you, but when I read the cases and commentaries on the issue, I can't help but come away with the conclusion that there simply is no method to the madness. There are some things in the Bill of Rights that various Justices over the years have just not liked, and it seems to me to be no more elegant than the individual prejudices against said rights being put into practice whenever possible. I lifted the following from Wikipedia, so while I think it is pretty much accurate, the usual caveats apply:

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." The Tenth Amendment is also not listed; by its wording, it is a reservation of rights to the states.)

Amendment I

Guarantee against establishment of religion

This provision has been incorporated against the states. See Everson v. Board of Education, 330 U.S. 1 (1947).

Guarantee of free exercise of religion

This provision has been incorporated against the states. See Cantwell v. Connecticut, 310 U.S. 296 (1940).

Guarantee of freedom of speech

This provision has been incorporated against the states. See Gitlow v. New York, 268 U.S. 652 (1925)(dicta).

Guarantee of freedom of the press

This provision has been incorporated against the states. See Near v. Minnesota, 283 U.S. 697 (1931).

Guarantee of freedom of assembly

This provision has been incorporated against the states. See DeJonge v. Oregon, 299 U.S. 353 (1937).

Right to petition for redress of grievances

It appears that no one case incorporates this right individually. However, dicta in Edwards v. South Carolina, 372 U.S. 229 (1963) suggests that this right is incorporated along with all the other First Amendment guarantees.

Guarantee of freedom of expressive association

This provision has been implicitly incorporated against the states. In Boy Scouts of America v. Dale, 530 U.S. 640 (2000), the Court ruled that this provision of the First Amendment forbade the state of New Jersey from applying its public accommodations law to a private association, which it held the Boy Scouts to be, in order to force it to admit gay boys and men as members. That ruling must logically rest on the implicit notion that the First Amendment right of expressive association restricts state governments as well as the federal government.

Amendment II

Right to keep and bear arms

This provision has not been held to be incorporated against the states. See Miller v. Texas, 153 U.S. 535 (1894); Presser v. Illinois, 116 U.S. 252 (1886); United States v. Cruikshank, 92 U.S. 542 (1875). However, these cases predate the Supreme Court's modern incorporation criteria, so it is an open question whether the Second Amendment will be incorporated. The court has ruled that the second amendment codifies a pre-existing individual right to possess and carry firearms, which is not in any manner dependent on the Constitution for its existence, and some commentators suggest that incorporation is likely, or that incorporation can hardly be escaped if the inferior courts take the Supreme Court's incorporation jurisprudence seriously as law—as they are required to do.

Regarding the Second Amendment and the incorporation doctrine, the Supreme Court in District of Columbia v. Heller said:

With respect to Cruikshank's continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the first amendment did not apply against the states and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U.S. 252, 265 (1886) and Miller v. Texas, 153 U.S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.

Since Heller, federal cases have been filed requesting the Second Amendment be made applicable to the states via the Fourteenth Amendment. Two such cases are McDonald v. Chicago and Guy Montag Doe v. San Francisco Housing Authority.

The issue is also currently pending in the Court of Appeals for the Ninth Circuit in the case of Nordyke v. King.

Amendment III

Freedom from quartering of soldiers

This provision has not been held to be incorporated against the states. This is not to say that it has been held not to be incorporated; rather, it is simply that the Supreme Court has never explicitly said that it applies to the states. The Tenth Circuit has suggested that the right is incorporated because the Bill of Rights explicitly codifies the "fee ownership system developed in English law" through the Third, Fourth, and Fifth Amendments, and the Fourteenth Amendment likewise forbids the states from depriving citizens of their property without due process of law. See United States v. Nichols, 841 F.2d 1485, 1510 n.1 (10th Cir. 1988). Furthermore, in 1982, the Second Circuit applied the Third Amendment to the states in Engblom v. Carey.

Amendment IV

Unreasonable search and seizure

This right has been incorporated against the states, along with the remedy of exclusion of unlawfully seized evidence, by the Supreme Court's decision in Mapp v. Ohio, 367 U.S. 643 (1961). In Mapp, the Court overruled Wolf v. Colorado, 338 U.S. 25 (1949), in which the Court had ruled that while the Fourth Amendment applied to the states (meaning that they were bound not to engage in unreasonable searches and seizures), the exclusionary rule did not (meaning that they were free to fashion other remedies for criminal defendants whose possessions had been illegally seized by the police in violation of the Fourth Amendment).

Warrant requirements

The various warrant requirements have been incorporated against the states. See Aguilar v. Texas, 378 U.S. 108 (1964).
The standards for judging whether a search or seizure undertaken without a warrant was "unreasonable" also have been incorporated against the states. See Ker v. California, 374 U.S. 23 (1963).

Amendment V

Right to indictment by a grand jury

This right has been held not to be incorporated against the states. See Hurtado v. California, 110 U.S. 516 (1884). Because many state constitutions provide for indictment by grand jury, at least in the case of serious crimes, it is unlikely that the Supreme Court will revisit the decision not to incorporate this right against the states.

Protection against double jeopardy

This right has been incorporated against the states. See Benton v. Maryland, 395 U.S. 784 (1969).

Constitutional privilege against self-incrimination

This right has been incorporated against the states. See Malloy v. Hogan, 378 U.S. 1 (1964).
A note about the Miranda warnings: The text of the Fifth Amendment does not require that the police, before interrogating a suspect whom they have in custody, give him or her the now-famous Miranda warnings. Nevertheless, the Court has held that these warnings are a necessary prophylactic device, and thus required by the Fifth Amendment by police who interrogate any criminal suspect, regardless of whether he or she is ultimately prosecuted in state or federal court.

Protection against taking of private property without just compensation

This right has been incorporated against the states. See Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897). This proposition is now so uncontroversial that the Court recites it without citation. See, e.g., Kelo v. City of New London, 545 U.S. 469 (2005).

Amendment VI
Right to a speedy trial

This right has been incorporated against the states. See Klopfer v. North Carolina, 386 U.S. 213 (1967).

Right to a public trial

This right has been incorporated against the states. See In re Oliver, 333 U.S. 257 (1948).

Right to trial by impartial jury

This right has been incorporated against the states. See Duncan v. Louisiana, 391 U.S. 145 (1968). However, the size of the jury, as well as the requirement that it unanimously reach its verdict, vary between federal and state courts. Even so, the Supreme Court has ruled that a jury in a criminal case may have as few as six members, and only nine jurors need agree on a verdict. Furthermore, there is no right to a jury trial in juvenile delinquency proceedings held in state court. See McKeiver v. Pennsylvania, 403 U.S. 528 (1971).

Right to notice of accusations

This right has been incorporated against the states. See In re Oliver, 333 U.S. 257 (1948).

Right to confront adverse witnesses

This right has been incorporated against the states. See Pointer v. Texas, 380 U.S. 400 (1965).

Right to compulsory process (subpoenas) to obtain witness testimony

This right has been incorporated against the states. See Washington v. Texas, 388 U.S. 14 (1967).

Right to assistance of counsel

This right has been incorporated against the states. See Gideon v. Wainwright, 372 U.S. 335 (1963). In subsequent decisions, the Court extended the right to counsel to any case in which a jail sentence is imposed.

Amendment VII

Right to jury trial in civil cases

This right has been held not to be incorporated against the states. See Curtis v. Loether, 415 U.S. 189 (1974).

Amendment VIII

Protections against "excessive" bail and "excessive" fines

These provisions have not been held to be incorporated against the states. This is not to say that they have been held not to be incorporated, like the provision of the Fifth Amendment for indictment by grand jury. Rather, it is an open question whether these two provisions apply to the states by virtue of the Fourteenth Amendment. In Murphy v. Hunt, 455 U.S. 478 (1982), the Court held that a pretrial detainee's suit under 42 U.S.C. § 1983 that he was being unconstitutionally denied bail, in violation of the Eighth Amendment, was rendered moot when he was convicted in a Nebraska court. The conclusion that the § 1983 case had been moot from the moment of the defendant's conviction allowed the Court to avoid deciding whether the Eighth Amendment protection against "excessive" bail applied to prosecutions in state court. In any event, all state constitutions provide for a similar right, and so the most frequent mechanism for challenging the amount of bail, or the complete denial of bail, remains state law.

Protection against "cruel and unusual punishments"

This provision has been incorporated against the states. See Robinson v. California, 370 U.S. 660 (1962). This holding has led the Court to suggest, in dicta, that the excessive bail and excessive fines protections have also been incorporated. See Baze v. Rees, 128 S. Ct. 1520, 1529 (2008).

Reverse incorporation

A similar doctrine to incorporation is that of reverse incorporation. Whereas incorporation applies the Bill of Rights to the states though the Due Process Clause of the Fourteenth Amendment, in reverse incorporation, the Equal Protection Clause of the Fourteenth Amendment has been held to apply to the federal government through the Due Process Clause located in the Fifth Amendment.

It always devolves to the choices: "some", 'none" or 'all". If it is "none", then the law would not exist. That leaves us with "some" or "all".

If we scrutinize "some", we must come to the conclusion that no two scrutinizers can readily agree on the extent of "some" means, i.e. "which some?"

Thus the only result that can apply properly in every case and equally to all persons is the position "all".

Any other determination is a theft of power.

But the entire Incorporation Doctrine is another of those things the justices pulled out their arse. Or maybe used their crystal balls to magically or mystically divine.

Dominus providebit!

PS:

the Equal Protection Clause of the Fourteenth Amendment has been held to apply to the federal government through the Due Process Clause

This is typical garbage out of the mouths of judges. The equal protection clause is specific to the "states". There is absolutely no room for any maneuvering around the text, the intent, or the history except by someone seeking to usurp authority.

Who's in charge? It's certainly NOT the judges.
For, whenever a question arises between the society at large and any magistrate vested with powers originally delegated by that society, it must be decided by the voice of the society itself: there is not upon earth any other tribunal to resort to.

Sir William Blackstone, Blackstone's Commentaries on the Laws of England, Book I, Chp3, pg.205/6

Re: Justice Black. It depends completely on what law is in question. I think the Kozinski's dissent in Silveira says it best:

"Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it's using our power as federal judges to constitutionalize our personal preferences. . . ."

Basically it boils down to two choices for the observer. A) the jurists deciding such are too illiterate to understand the word "all" as in "all privileges and immunities. or B) they do understand and are dishonest.

That's it. No other options available, just those two. I know which one I believe.