Freedom of religion 113TA B L E
Selective Incorporation 4 .1The process of applying most of the Bill of Rights to the states progressed in two stages. The first,
coming in the 1920s and 1930s, applied the First Amendment to the states; the second came a few
decades later and involved criminal defendants’ rights.* Wolf v. Colorado applied the Fourth Amendment to the states (which meant that states could not engage in unreasonable searches and seizures);
Mapp v. Ohio applied the exclusionary rule to the states (which excludes the use in a trial of illegally obtained evidence).
† Some sources list Louisiana ex rel. Francis v. Resweber (1947) as the first case that incorporated the Eighth Amendment. While the decision mentioned
the Fifth and Eighth Amendments in the context of the due process clause of the Fourteenth Amendment, this argument was not included in the
majority opinion that upheld as constitutional the bizarre double electrocution of prisoner Willie Francis (the electric chair malfunctioned on the first
attempt but was successful on the second attempt; see Henry J. Abraham and Barbara A. Perry, Freedom and the Court: Civil Rights and Civil Liberties
in the United States, 8th ed. [Lawrence: University Press of Kansas, 2003], pp. 71–72).
‡ Justice Blackmun “assumed” in this case that “the Eighth Amendment’s proscription of excessive bail [applies] to the states through the Fourteenth
Amendment,” but later decisions did not seem to share this view. However, Justices Stevens and O’Connor agreed with Blackmun’s view in Browning-
Ferris v. Kelco Disposal (1989). Some sources argue that the excessive bail clause of the Eighth Amendment is unincorporated.
§ ustice Goldberg argued for explicit incorporation of the Ninth Amendment in a concurring opinion joined by Justices Warren and Brennan. The opinion J
of the Court referred more generally to a privacy right rooted in five amendments, including the Ninth, but did not explicitly argue for incorporation.Amendment Issue Case
First Amendment Freedom of speech Gitlow v. New York ( 1925)
Freedom of the press Near v. Minnesota ( 1931 )
Freedom of assembly De Jonge v. Oregon ( 1937 )
Right to petition the government Hague v. CIO ( 1939)
Free exercise of religion Hamilton v. Regents of the University of California ( 1934) ;
Cantwell v. Connecticut ( 194 0)
Separation of church and state Everson v. Board of Education of Ewing Township ( 1947 )
Second Amendment Right to bear arms McDonald v. Chicago (2010)
Fourth Amendment Protection from unreasonable search and seizure Wolf v. Colorado ( 1949) ; Mapp v. Ohio ( 1961 ) *
Fifth Amendment Protection from forced self-incrimination Malloy v. Hogan ( 196 4)
Protection from double jeopardy Benton v. Maryland ( 1969)
Sixth Amendment Right to a public trial In re Oliver 333 U.S. 257 (1948)
Right to a fair trial and an attorney in death-penalty cases Powell v. Alabama (1932)
Right to an attorney in all felony cases Gideon v. Wainwright ( 1963 )
Right to an attorney in cases involving jail time Argersinger v. Hamlin (1972)
Right to a jury trial in a criminal case Duncan v. Louisiana ( 1968)
Right to cross-examine a witness Pointer v. Texas ( 1965)
Right to compel the testimony of witnesses who are vital for
the defendant’s caseWashington v. Texas ( 1967 )Eighth Amendment Protection from cruel and unusual punishment Robinson v. California (1962)†
Protection from excessive bail Schilb v. Kuebel ( 1971 ) ‡
Ninth Amendment Right to privacy and other nonenumerated, fundamental
rightsGriswold v. Connecticut ( 1965)§Not Incorporated
Third Amendment Prohibition against the quartering of troops in private homes
Fifth Amendment Right to indictment by a grand jury
Seventh Amendment Right to a jury trial in a civil case
Eighth Amendment Prohibition against excessive finesFull_05_APT_64431_ch04_102-147.indd 113 16/11/18 1:27 PM