Incorporation Case Study

When James Madison drafted the Bill of Rights, he wanted some of the provisions to apply to both the states and the federal government, but the “states would not have ratified the document [Bill of Rights] had the limitations been seen as proscribing state action,” (Scheb, 28). As such, the first amendment reads: “Congress shall make no law…” (First Amendment). In other wordas, the Bill of Rights only provided protections from the federal government—the only government with a “Congress. The states could bypass these restrictions, and many did until the Incorporation Doctrine began to take shape after the Civil War.
The Fourteenth Amendment (1868) “provided an opportunity for the Supreme Court to reconsider the relationship between the Bill

California (1947) where “the Court refused to extend the Fifth Amendment privilege against compulsory self-incrimination to state criminal trials” (Scheb, 30). Case by Case Incorporation was used by Justice Reed in his opinion in Adamson v. California (1947), where he directly states, “protection against self-incrimination is not a privilege or immunity of national citizenship” (Scheb, 61). This method of incorporation therefore interprets “due process” to permit fairness assessment on a case-by-case basis. It is “flexible, dynamic, and sensitive to the costs of incorporation”, but is also very subjective and “affords inadequate protection to civil liberties” (Class Notes, March 2). Contrasting this, Total Incorporation Plus was used by Justices Murphy and Rutledge in their dissenting opinion of Adamson v. California (1947), as they described a time when “a proceeding falls so far short of conforming to fundamental standards of procedure as to warrant constitutional condemnation in terms of a lack of due process despite the absence of a specific provision in the Bill of Rights” (Scheb, 64). They thus interpreted the word “liberty” in the Fourteenth Amendment to “protect all the provisions of the first eight amendments and any others thought fundamental” (Class Notes, March 2). This method of incorporation “affords protection for civil liberties, but is very costly and provides no clear guides as to where protections stop” (Class Notes, March