American Politics Today - Essentials (3rd Ed)

96 CHAPTER 4|CIVIL LIBERTIES

SELECTIVE INCORPORATION

TABLETABLE » »^ 5.14.1

AMENDMENT ISSUE CASE

First Amendment Freedom of speech Gitlow v. New York (1925)

Freedom of the press Near v. Minnesota (1931)

Freedom of assembly DeJonge 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

(1940)

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)a

Fifth Amendment Protection from forced self-incrimination Malloy v. Hogan (1964)

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 witnesses to testify who are vital for

the defendant’s case

Washington v. Texas (1967)

Eighth Amendment Protection from cruel and unusual punishment Robinson v. California (1962)b

Protection from excessive bail Schilb v. Kuebel (1971)c

Ninth Amendment Right to privacy and other nonenumerated,

fundamental rights

Griswold v. Connecticut (1965)d

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 fi nes

aWolf 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).
bSome sources list Louisiana ex rel. Francis v. Resweber (1947) as the fi rst case that incorporated the Eighth Amendment. While the decision men-
tioned 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 Willie Francis (the electric chair malfunctioned on the
fi rst attempt but was successful on the second attempt; see Abraham and Perry, Freedom and the Court, pp. 71–72).
cJustice Blackmun “assumed” in this case that “the 8th Amendment’s proscription of excessive bail [applies] to the states through the 14th
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.
dJustice Goldberg argued for explicit incorporation of the Ninth Amendment in a concurring opinion joined by Justices Warren and Brennan. The opin-
ion of the Court referred more generally to a privacy right rooted in fi ve amendments, including the Ninth, but did not explicitly argue for incorporation.