Due Process Clause
Clauses in the 5th and 14th Amendments to the U.S. Constitution
A Due Process Clause is found in both the Fifth and Fourteenth Amendments to the United States Constitution, which prohibit the deprivation of "life, liberty, or property" by the federal and state governments, respectively, without due process of law.
The U.S. Supreme Court interprets these clauses to guarantee a variety of protections: procedural due process (in civil and criminal proceedings); substantive due process (a guarantee of some fundamental rights); a prohibition against vague laws; incorporation of the Bill of Rights to state governments; and equal protection under the laws of the federal government.
Text.
The clause in the Fifth Amendment to the United States Constitution provides:
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The clause in Section One of the Fourteenth Amendment to the United States Constitution provides:
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Background.
Clause 39 of Magna Carta provided:
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The phrase "due process of law" first appeared in a statutory rendition of Magna Carta in 1354 during the reign of Edward III of England, as follows:
<templatestyles src="Template:Blockquote/styles.css" />No man of what state or condition he be, shall be put out of his lands or tenements nor taken (taken to mean arrested or deprived of liberty by the state), nor disinherited, nor put to death, without he be brought to answer by due process of law.
Drafting.
New York was the only state that asked Congress to add "due process" language to the U.S. Constitution. New York ratified the U.S. Constitution and proposed the following amendment in 1788: <templatestyles src="Template:Blockquote/styles.css" />[N]o Person ought to be taken imprisoned or disseized of his freehold, or be exiled or deprived of his Privileges, Franchises, Life, Liberty or Property but by due process of Law.
In response to this proposal from New York, James Madison drafted a due process clause for Congress. Madison cut out some language and inserted the word "without", which had not been proposed by New York. Congress then adopted the exact wording that Madison proposed after Madison explained that the due process clause would not be sufficient to protect various other rights:
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Interpretation.
Scope.
The Supreme Court has interpreted the Due Process Clauses in the Fifth and Fourteenth Amendment identically, as Justice Felix Frankfurter once explained in a concurring opinion:
<templatestyles src="Template:Blockquote/styles.css" />To suppose that 'due process of law' meant one thing in the Fifth Amendment and another in the Fourteenth is too frivolous to require elaborate rejection.
In 1855, the Supreme Court explained that, to ascertain whether a process is due process, the first step is to "examine the constitution itself, to see whether this process be in conflict with any of its provisions". In the same 1855 case, the Supreme Court said, <templatestyles src="Template:Blockquote/styles.css" />The words, "due process of law", were undoubtedly intended to convey the same meaning as the words, "by the law of the land", in Magna Charta.
In the 1884 case of "Hurtado v. California", the Court said:
<templatestyles src="Template:Blockquote/styles.css" />Due process of law in the [Fourteenth Amendment] refers to that law of the land ... in each state which derives its authority from the inherent and reserved powers of the state, exerted within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and the greatest security for which resides in the right of the people to make their own laws, and alter them at their pleasure.
Due process also applies to the creation of taxing districts, as taxation is a deprivation of property. Due process typically requires public hearings prior to the creation of a taxing district.
"State".
Due process applies to U.S. territories, although they are not States.
"Person".
The Due Process Clauses apply to both natural persons, including citizens and non-citizens, as well as to "legal persons" (that is, corporate personhood). The Fifth Amendment's Due Process Clause was first applied to corporations in 1893 by the Supreme Court in "Noble v. Union River Logging R. Co." "Noble" was preceded by "Santa Clara County v. Southern Pacific Railroad" in 1886. The Due Process Clauses apply to non-citizens within the United States – no matter whether their presence may be or is "unlawful, involuntary or transitory" – although the U.S. Supreme Court has recognized that non-citizens can be stopped, detained, and denied past immigration officials at points of entry (e.g. at a port or airport) without the protection of the Due Process Clause because, while technically on U.S. soil, they are not considered to have entered the United States.
"Life".
In "Bucklew v. Precythe", 587 U.S. 119 (2019), the Supreme Court held that the Due Process Clause expressly allows the death penalty in the United States because "the Fifth Amendment, added to the Constitution at the same time as the Eighth, expressly contemplates that a defendant may be tried for a 'capital' crime and 'deprived of life' as a penalty, so long as proper procedures are followed".
"Liberty".
The U.S. Supreme Court has interpreted the term "liberty" in the Due Process Clauses broadly:
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State actor.
The prohibitions of the due process clauses apply only to the actions of state actors and not against private citizens. However, "[p]rivate persons, jointly engaged with state officials in the prohibited action, are acting 'under color' of law... To act 'under color' of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents".
Procedural due process.
Procedural due process requires government officials to follow fair procedures before depriving a person of life, liberty, or property. When the government seeks to deprive a person of one of those interests, procedural due process requires the government to afford the person, at minimum, notice, an opportunity to be heard, and a decision made by a neutral decisionmaker.
This protection extends to all government proceedings that can result in an individual's deprivation, whether civil or criminal in nature, from parole violation hearings to administrative hearings regarding government benefits and entitlements to full-blown criminal trials. The article "Some Kind of Hearing" written by Judge Henry Friendly created a list of basic due process rights "that remains highly influential, as to both content and relative priority". These rights, which apply equally to civil due process and criminal due process, are:
Civil procedural due process.
Procedural due process is essentially based on the concept of "fundamental fairness". For example, in 1934, the United States Supreme Court held that due process is violated "if a practice or rule offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental". As construed by the courts, it includes an individual's right to be adequately notified of charges or proceedings, the opportunity to be heard at these proceedings, and that the person or panel making the final decision over the proceedings be impartial in regards to the matter before them.
To put it more simply, where an individual is facing a deprivation of life, liberty, or property, procedural due process mandates that they are entitled to adequate notice, a hearing, and a neutral judge.
The Supreme Court has formulated a balancing test to determine the rigor with which the requirements of procedural due process should be applied to a particular deprivation, for the obvious reason that mandating such requirements in the most expansive way for even the most minor deprivations would bring the machinery of government to a halt. The Court set out the test as follows: "[I]dentification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and, finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail."
Procedural due process has also been an important factor in the development of the law of personal jurisdiction, in the sense that it is inherently unfair for the judicial machinery of a state to take away the property of a person who has no connection to it whatsoever. A significant portion of U.S. constitutional law is therefore directed to what kinds of connections to a state are enough for that state's assertion of jurisdiction over a nonresident to comport with procedural due process.
The requirement of a neutral judge has introduced a constitutional dimension to the question of whether a judge should recuse themself from a case. Specifically, the Supreme Court has ruled that in certain circumstances, the Due Process Clause of the Fourteenth Amendment requires a judge to recuse themself on account of a potential or actual conflict of interest. For example, in "Caperton v. A. T. Massey Coal Co." (2009), the Court ruled that a justice of the Supreme Court of Appeals of West Virginia could not participate in a case involving a major donor to his election to that court.
Criminal procedural due process.
In criminal cases, many of these due process protections overlap with procedural protections provided by the Eighth Amendment to the United States Constitution, which guarantees reliable procedures that protect innocent people from being executed, which would be an obvious example of cruel and unusual punishment.
An example of criminal due process rights is the case "Vitek v. Jones", 445 U.S. 480 (1980). The due process clause of the Fourteenth Amendment requires certain procedural protections for state prisoners who may be transferred involuntarily to a state mental hospital for treatment of a mental disease or defect, such protections including written notice of the transfer, an adversary hearing before an independent decision-maker, written findings, and effective and timely notice of such rights. As established by the district court and upheld by the U.S. Supreme Court in "Vitek v. Jones", these due process rights include:
Substantive due process.
By the middle of the 19th century, "due process of law" was interpreted by the U.S. Supreme Court to mean that "it was not left to the legislative power to enact any process which might be devised. The due process article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave Congress free to make any process 'due process of law' by its mere will."
The term "substantive due process" (SDP) is commonly used in two ways: first to identify a particular line of case law, and second to signify a particular attitude toward judicial review under the Due Process Clause. The term "substantive due process" began to take form in 1930s legal casebooks as a categorical distinction of selected due process cases, and by 1950 had been mentioned twice in Supreme Court opinions. SDP involves liberty-based due process challenges which seek certain outcomes instead of merely contesting procedures and their effects; in such cases, the Supreme Court recognizes a constitutionally-based "liberty" which then renders laws seeking to limit said "liberty" either unenforceable or limited in scope. Critics of SDP decisions typically assert that those liberties ought to be left to the more politically accountable branches of government.
Courts have viewed the due process clause, and sometimes other clauses of the Constitution, as embracing those fundamental rights that are "implicit in the concept of ordered liberty". Just what those rights are is not always clear, nor is the Supreme Court's authority to enforce such unenumerated rights clear. Some of those rights have long histories or "are deeply rooted" in American society.
The courts have largely abandoned the Lochner era approach (c. 1897-1937) when substantive due process was used to strike down minimum wage and labor laws in order to protect freedom of contract. Since then, the Supreme Court has decided that numerous other freedoms that do not appear in the plain text of the Constitution are nevertheless protected by the Constitution. If these rights were not protected by the federal courts' doctrine of substantive due process, they could nevertheless be protected in other ways; for example, it is possible that some of these rights could be protected by other provisions of the state or federal constitutions, and alternatively they could be protected by legislatures.
The Court focuses on three types of rights under substantive due process in the Fourteenth Amendment, which originated in "United States v. Carolene Products Co.", 304 U.S. 144 (1938), footnote 4. Those three types of rights are:
The Court usually looks first to see if there is a fundamental right, by examining if the right can be found deeply rooted in American history and traditions. Where the right is not a fundamental right, the court applies a rational basis test: if the violation of the right can be rationally related to a legitimate government purpose, then the law is held valid. If the court establishes that the right being violated is a fundamental right, it applies strict scrutiny. This test inquires into whether there is a compelling state interest being furthered by the violation of the right, and whether the law in question is narrowly tailored to address the state interest.
Privacy, which is not explicitly mentioned in the Constitution, was at issue in "Griswold v. Connecticut" (1965), wherein the Court held that criminal prohibition of contraceptive devices for married couples violated federal, judicially enforceable privacy rights. The right to contraceptives was found in what the Court called the "penumbras", or shadowy edges, of certain amendments that arguably refer to certain privacy rights. The penumbra-based rationale of "Griswold" has since been discarded; the Supreme Court now uses the Due Process Clause as a basis for various unenumerated privacy rights. Although it has never been the majority view, some have argued that the Ninth Amendment (addressing unenumerated rights) could be used as a source of fundamental judicially enforceable rights, including a general right to privacy, as discussed by Justice Goldberg concurring in "Griswold".
Void for vagueness.
The courts have generally determined that laws which are too vague for the average citizen to understand deprive citizens of their rights to due process. If an average person cannot determine who is regulated, what conduct is prohibited, or what punishment may be imposed by a law, courts may find that law to be void for vagueness. See "Coates v. Cincinnati", where the word "annoying" was deemed to lack due process insertion of fair warning.
Incorporation of the Bill of Rights.
Incorporation is the legal doctrine by which the Bill of Rights, either in full or in part, is applied to the states through the Fourteenth Amendment's due process clause. The basis for incorporation is substantive due process regarding substantive rights enumerated elsewhere in the Constitution, and procedural due process regarding procedural rights enumerated elsewhere in the Constitution.
Incorporation started in 1897 with a takings case, continued with "Gitlow v. New York" (1925), which was a First Amendment case, and accelerated in the 1940s and 1950s. Justice Hugo Black famously favored the jot-for-jot incorporation of the entire Bill of Rights. Justice Felix Frankfurter, however—joined later by Justice John M. Harlan—felt that the federal courts should only apply those sections of the Bill of Rights that were "fundamental to a scheme of ordered liberty". It was the latter course that the Warren Court of the 1960s took, although almost all of the Bill of Rights has now been incorporated jot-for-jot against the states. The latest Incorporation is the Excessive Fines Clause of the Eighth Amendment; see Timbs v. Indiana, 586 U.S. ____ (2019).
The role of the incorporation doctrine in applying the guarantees of the Bill of Rights to the states is just as notable as the use of due process to define new fundamental rights that are not explicitly guaranteed by the Constitution's text. In both cases, the question has been whether the right asserted is "fundamental", so that, just as not all proposed "new" constitutional rights are afforded judicial recognition, not all provisions of the Bill of Rights have been deemed sufficiently fundamental to warrant enforcement against the states.
Some people, such as Justice Black, have argued that the Privileges or Immunities Clause of the Fourteenth Amendment would be a more appropriate textual source for the incorporation doctrine. The Court has not taken that course, and some point to the treatment given to the Privileges or Immunities Clause in the 1873 "Slaughter-House Cases" as a reason why. Although the "Slaughter-House" Court did not expressly preclude application of the Bill of Rights to the states, the clause largely ceased to be invoked in opinions of the Court following the "Slaughter-House Cases", and when incorporation did begin, it was under the rubric of due process. Scholars who share Justice Black's view, such as Akhil Amar, argue that the Framers of the Fourteenth Amendment, like Senator Jacob Howard and Congressman John Bingham, included a Due Process Clause in the Fourteenth Amendment for the following reason: "By incorporating the rights of the Fifth Amendment, the privileges or immunities clause would ... have prevented states from depriving 'citizens' of due process. Bingham, Howard, and company wanted to go even further by extending the benefits of state due process to aliens."
The Supreme Court has consistently held that Fifth Amendment due process means substantially the same as Fourteenth Amendment due process, and therefore the original meaning of the former is relevant to the incorporation doctrine of the latter. When the Bill of Rights was originally proposed by Congress in 1789 to the states, various substantive and procedural rights were "classed according to their affinity to each other" instead of being submitted to the states "as a single act to be adopted or rejected in the gross", as James Madison put it. Roger Sherman explained in 1789 that each amendment "may be passed upon distinctly by the States, and any one that is adopted by three fourths of the legislatures may become a part of the Constitution". Thus, the states were allowed to reject the Sixth Amendment, for example, while ratifying all of the other amendments including the Due Process Clause; in that case, the rights in the Sixth Amendment would not have been incorporated against the federal government. The doctrine of incorporating the content of other amendments into "due process" was thus an innovation, when it began in 1925 with the "Gitlow" case, and this doctrine remains controversial today.
Reverse incorporation of equal protection.
In "Bolling v. Sharpe" 347 U.S. 497 (1954), the Supreme Court held that "the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive." The Court thus interpreted the Fifth Amendment's due process clause to include an equal protection element. In "Lawrence v. Texas" the Supreme Court added: "Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests."
Levels of scrutiny.
When a law or other act of government is challenged as a violation of individual liberty under the due process clause, courts nowadays primarily use two forms of scrutiny, or judicial review, which is used by the Judicial Branch. This inquiry balances the importance of the governmental interest being served and the appropriateness of the government's method of implementation against the resulting infringement of individual rights. If the governmental action infringes upon a fundamental right, the highest level of review—strict scrutiny—is used. To pass strict scrutiny review, the law or act must be narrowly tailored to further a compelling government interest.
When the governmental restriction restricts liberty in a manner that does not implicate a fundamental right, rational basis review is used. Here a legitimate government interest is enough to pass this review. There is also a middle level of scrutiny, called intermediate scrutiny, but it is primarily used in Equal Protection cases rather than in Due Process cases.
Remedies.
The Court held in 1967 (in "Chapman v. California") that "we cannot leave to the States the formulation of the authoritative ... remedies designed to protect people from infractions by the States of federally guaranteed rights".
Criticism.
Substantive due process.
Critics of a substantive due process often claim that the doctrine began, at the federal level, with the infamous 1857 slavery case of "Dred Scott v. Sandford". However, other critics contend that substantive due process was not used by the federal judiciary until after the Fourteenth Amendment was adopted in 1869. Advocates of a substantive due process who assert that the doctrine was employed in "Dred Scott" claim that it was employed incorrectly. Additionally, the first appearance of a substantive due process as a concept arguably appeared earlier in the case of "Bloomer v. McQuewan", 55 U.S. 539 (1852), so that Chief Justice Taney would not have been entirely breaking ground in his "Dred Scott" opinion when he pronounced the Missouri Compromise unconstitutional because, among other reasons, an "act of Congress that deprived a citizen of his liberty or property merely because he came himself or brought his property into a particular territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law". Dissenting Justice Curtis disagreed with Taney about what "due process" meant in "Dred Scott".
Criticisms of the doctrine continue as in the past. Critics argue that judges are making determinations of policy and morality that properly belong with legislators (i.e. "legislating from the bench"), or argue that judges are reading views into the Constitution that are not really implied by the document, or argue that judges are claiming the power to expand the liberty of some people at the expense of other people's liberty (e.g. as in the Dred Scott case), or argue that judges are addressing substance instead of process.
Oliver Wendell Holmes Jr., a realist, worried that the Court was overstepping its boundaries, and the following is from one of his last dissents:
<templatestyles src="Template:Blockquote/styles.css" />I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable. I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions. Yet I can think of no narrower reason that seems to me to justify the present and the earlier decisions to which I have referred. Of course the words "due process of law", if taken in their literal meaning, have no application to this case; and while it is too late to deny that they have been given a much more extended and artificial signification, still we ought to remember the great caution shown by the Constitution in limiting the power of the States, and should be slow to construe the clause in the Fourteenth Amendment as committing to the Court, with no guide but the Court's own discretion, the validity of whatever laws the States may pass.
Originalists, such as Supreme Court Justice Clarence Thomas, who rejects substantive due process doctrine, and Supreme Court Justice Antonin Scalia, who has also questioned the legitimacy of the doctrine, call a substantive due process a "judicial usurpation" or an "oxymoron". Both Scalia and Thomas have occasionally joined Court opinions that mention the doctrine, and have in their dissents often argued over how substantive due process should be employed based on Court precedent.
Many non-originalists, like Justice Byron White, have also been critical of a substantive due process. As propounded in his dissents in "Moore v. East Cleveland" and "Roe v. Wade", as well as his majority opinion in "Bowers v. Hardwick", White argued that the doctrine of a substantive due process gives the judiciary too much power over the governance of the nation and takes away such power from the elected branches of government. He argued that the fact that the Court has created new substantive rights in the past should not lead it to "repeat the process at will". In his book "Democracy and Distrust", non-originalist John Hart Ely criticized "substantive due process" as a glaring non-sequitur. Ely argued the phrase was a contradiction-in-terms, like the phrase "green pastel redness".
Originalism is usually linked to opposition against substantive due process rights, and the reasons for that can be found in the following explanation that was endorsed unanimously by the Supreme Court in a 1985 case:
"[W]e must always bear in mind that the substantive content of the [due process] clause is suggested neither by its language nor by preconstitutional history; that content is nothing more than the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments."
Originalists do not necessarily oppose protection of the rights heretofore protected using substantive due process; rather, most originalists believe that such rights should be identified and protected through legislation, through passing amendments to the constitution, or via other existing provisions of the Constitution.
The perceived scope of the Due Process Clause has changed over time. For instance, even though many of the Framers of the Bill of Rights believed that slavery violated the fundamental natural rights of African-Americans:
"[a] theory that declared slavery to be a violation of the due process clause of the Fifth Amendment ... requires nothing more than a suspension of reason concerning the origin, intent, and past interpretation of the clause".
Due process clauses in state constitutions.
No state or federal constitution in the U.S. had ever before utilized any "due process" wording, prior to 1791 when the federal Bill of Rights was ratified.
New York.
In New York, a statutory bill of rights was enacted in 1787, and it contained four different due process clauses. Alexander Hamilton commented on the language of that New York bill of rights: "The words 'due process' have a precise technical import, and are only applicable to the process and proceedings of the courts of justice; they can never be referred to an act of the legislature."
References.
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Procedural due process
Legal doctrine
Procedural due process is a legal doctrine in the United States that requires government officials to follow fair procedures before depriving a person of life, liberty, or property. When the government seeks to deprive a person of one of those interests, procedural due process requires at least for the government to afford the person notice, an opportunity to be heard, and a decision made by a neutral decisionmaker. Procedural due process is required by the Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution.
The article "Some Kind of Hearing" written by Judge Henry Friendly created a list of basic due process rights "that remains highly influential, as to both content and relative priority." The rights, which apply equally to civil due process and criminal due process, are the following:
Not all the above rights are guaranteed in every instance when the government seeks to deprive a person life, liberty, or property. At minimum, a person is due only notice, an opportunity to be heard, and a decision by a neutral decisionmaker. Courts use various tests to determine whether a person should also be guaranteed any of the other above procedural rights.
References.
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Compulsory Process Clause
Clause within the United States Constitution
The Compulsory Process Clause within the Sixth Amendment to the United States Constitution lets criminal case defendants attain witnesses in their favor by way of a court-ordered subpoena. The Clause is generally interpreted as letting defendants present their own case at trial, though several specific limitations have been placed by the Supreme Court of the United States since this rule began.
Text.
<templatestyles src="Template:Blockquote/styles.css" />In all criminal prosecutions, the accused shall enjoy the right...to have compulsory process for obtaining witnesses in his favor.
History.
The Compulsory Process Clause was part of the Sixth Amendment, which was ratified in 1791. Between ratification and the Fourteenth Amendment, there were very limited instances in which a court dealt with compulsory process. One important example is the trial of Vice President Aaron Burr, where Burr tried to subpoena documents from the President in order to sustain his defense. Though the case was heard in Federal Circuit Court the presiding judge was Chief Justice John Marshall who ordered the papers be issued, invoking the Sixth Amendment.
After the passage of the Fourteenth Amendment in 1868, the Supreme Court dealt with a series of cases regarding the guarantees offered by the Due Process Clause. The first case to evaluate the procedural trial rights of defendants in terms of the Due Process Clause was the 1897 decision in "Hovey v. Elliot". In "Hovey", the Supreme Court specifically applied the Due Process Clause to fair trial guarantees, holding that due process "secures an 'inherent right of defense'". This doctrine eventually came to protect the defendant's ability to "present exculpatory evidence and testimony of witnesses". For example, the Court in "Brady v. Maryland" used the Due Process Clause to require the prosecution in criminal proceedings to disclose evidence that is favorable to the defendant prior to a trial.
The Court's due process jurisprudence was expanded with the 1948 decision in "In re Oliver" which revised the breadth of the fundamental fairness doctrine. The Court wrote:
<templatestyles src="Template:Blockquote/styles.css" />A person's right to reasonable notice of a charge against him, and an opportunity to be heard in his defense—a right to his day in court—are basic in our system of jurisprudence; and these rights include, as a minimum, a right to examine the witnesses against him, to offer testimony, and to be represented by counsel.
In "Washington v. Texas" (1967), the Supreme Court held that the Clause barred a state law that made persons charged or convicted as co-participants in a common crime incompetent to testify on behalf of one another. This was a holding based on the Due Process Clause, a departure from the "Oliver" cases. Chief Justice Earl Warren, who wrote the majority opinion, stated that compulsory process was critical to the very ability to "present a defense...[a] defendant's version of the facts". This broad right was necessary to note as its absence would make the right to compel witnesses futile.
However, in "Taylor v. Illinois" (1988), the Court rejected a challenge to witness preclusion rules, holding that the Clause did not provide for an "absolute" right for defendants. The Court held that "The Compulsory Process Clause provides [the defendant] with an effective weapon, but it is a weapon that cannot be used irresponsibly". There are "countervailing public interests" which weigh against an absolute position of applying the Clause; this signaled a major turn since "Washington" two decades earlier.
Remedies.
In modern practice, a violation of the Compulsory Process Clause leads to the reversal of a conviction unless the original error is "harmless". This occurs because the exclusion of defense evidence can "significantly undermine fundamental elements of the [defendant's] defense". The remedy is not automatic reversal only because not every Sixth Amendment error is automatically a Due Process error.
Other sources of a right to compulsory process.
The Due Process Clauses of the Fifth and Fourteenth Amendments also require compulsory process as an element of due process. State statutes and constitutions are another source of the right to confront witnesses.
Notes.
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References.
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Substantive due process
Legal principle
Substantive due process is a principle in United States constitutional law that allows courts to establish and protect substantive laws and certain fundamental rights from government interference, even if they are unenumerated elsewhere in the U.S. Constitution. Courts have asserted that such protections stem from the due process clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution, which prohibit the federal and state governments, respectively, from depriving any person of "liberty ... without due process of law." Substantive due process demarcates the line between acts that courts deem subject to government regulation or legislation and those they consider beyond the reach of governmental interference. Whether the Fifth or Fourteenth Amendments were intended to serve that function continues to be a matter of scholarly as well as judicial discussion and dissent. In his concurrence in the 2022 landmark decision "Dobbs v. Jackson Women's Health Organization", Justice Clarence Thomas called on the Supreme Court to reconsider all of its rulings that were based on substantive due process.
Substantive due process is to be distinguished from procedural due process. The distinction arises from the words "of law" in the phrase "due process of law". Procedural due process protects individuals from the coercive power of government by ensuring that adjudication processes, under valid laws, are fair and impartial. Such protections, for example, include sufficient and timely notice of why a party is required to appear before a court or other governmental body, the right to an impartial trier of fact and trier of law, and the right to give testimony and present relevant evidence at hearings. In contrast, substantive due process protects individuals against majoritarian policy enactments that exceed the limits of governmental authority: courts may find that a majority's enactment is not law and cannot be enforced as such, even if the processes of enactment and enforcement were actually fair.
The term was first used explicitly in 1930s legal casebooks as a categorical distinction of selected due process cases, and by 1952 Supreme Court opinions had mentioned it twice. The term "substantive due process" itself is commonly used in two ways: to identify a particular line of case law and to signify a particular political attitude toward judicial review under the two due process clauses.
Much substantive due process litigation involves legal challenges to the validity of unenumerated rights and seeks particular outcomes instead of merely contesting procedures and their effects. In successful cases, the Supreme Court recognizes a constitutionally based liberty and considers laws that seek to limit that liberty to be unenforceable or limited in scope. Critics of substantive due process decisions usually assert that such decisions should be left to the purview of more politically-accountable branches of government.
Conceptual basics.
The courts have viewed the Due Process Clause and sometimes other clauses of the Constitution as embracing the fundamental rights that are "implicit in the concept of ordered liberty". The rights have not been clearly identified and the Supreme Court's authority to enforce the unenumerated rights is unclear. Some of the rights have been said to be "deeply rooted" in American history and tradition; that phrase was used for rights related to the institution of the family.
The courts have largely abandoned the Lochner era approach (c. 1897–1937), when substantive due process was used to strike down minimum wage and labor laws to protect freedom of contract. Since then, the Supreme Court has decided that the Constitution protects numerous other freedoms, even if they are not in the text. If the federal courts' doctrine of substantive due process did not protect them, they could nevertheless be protected in other ways; for example, other provisions of the state or federal constitutions or legislatures protect some rights.
Today, the Supreme Court provides special protection for three types of rights under substantive due process in the Fourteenth Amendment – an approach which originated in "United States v. Carolene Products Co.", 304 U.S. 144 (1938), footnote 4:
The Supreme Court usually looks first to see whether the right is a fundamental right by examining whether it is deeply rooted in American history and traditions. If the right is not a fundamental right, the court applies a rational basis test: if the violation of the right can be rationally related to a legitimate government purpose, the law is then held valid. If the court establishes that the right being violated is a fundamental right, it applies strict scrutiny and asks whether the law is necessary to achieve a compelling state interest and whether the law is narrowly tailored to address that interest.
History of jurisprudence.
Early in American judicial history, various jurists attempted to form theories of natural rights and natural justice to limit the power of government, especially on property and the rights of persons. Opposing "vested rights" were other jurists, who argued that the written constitution was the supreme law of the State and that judicial review could look only to that document, not to the "unwritten law" of "natural rights". Opponents also argued that the "police power" of government allowed legislatures to regulate the holding of property in the public interest, subject only to specific prohibitions of the written constitution.
Early origins.
The phrase "substantive due process" was not used until the 20th century, but the concept arguably existed in the 19th century. The idea was a way to import natural law norms into the Constitution; prior to the American Civil War, the state courts were the site of the struggle. Critics of substantive due process claim that the doctrine began, at the federal level, with the infamous 1857 slavery case of "Dred Scott v. Sandford". Advocates of substantive due process acknowledge that the doctrine was employed in "Dred Scott" but claim that it was employed incorrectly. Indeed, abolitionists and others argued that both before and after "Dred Scott", the Due Process Clause actually prohibited the federal government from recognizing slavery. Also, the first appearance of substantive due process, as a concept, had appeared in "Bloomer v. McQuewan", 55 U.S. 539 (1852).
The "vested rights" jurists saw the "law of the land" and "due process" clauses of state constitutions as restrictions on the substantive content of legislation. They were sometimes successful in arguing that certain government infringements were prohibited, regardless of procedure. For example, in 1856, the New York Court of Appeals held in "Wynehamer v. New York" that "without 'due process of law', no act of legislation can deprive a man of his property, and that in civil cases an act of the legislature alone is wholly inoperative to take from a man his property". However, in 1887 the U.S. Supreme Court subsequently rejected the rationale of "Wynehamer". Other antebellum cases on due process include "Murray's Lessee v. Hoboken Land & Improvement Co.", which dealt with procedural due process, but the Supreme Court subsequently characterized the rationale of "Murray", in the case of "Hurtado v. California", as not providing "an indispensable test" of due process.
Another important pre-Civil War milestone in the history of due process was Daniel Webster's argument to the Supreme Court as counsel in "Dartmouth College v. Woodward" that the Due Process Clause forbids bills of attainder and various other types of depriving legislation. Nevertheless, the Supreme Court declined in the case to address that aspect of Webster's argument, the New Hampshire Supreme Court having already rejected it.
Roger Taney, in his "Dred Scott" opinion, pronounced without elaboration that the Missouri Compromise was unconstitutional because an "act of Congress that deprived a citizen of his liberty or property merely because he came himself or brought his property into a particular territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law". In the case, neither Taney nor the dissenting Benjamin Robbins Curtis mentioned or relied upon the Court's previous discussion of due process in "Murray", and Curtis disagreed with Taney about what "due process" meant.
"Lochner" era.
Following the Civil War, the Fourteenth Amendment's due process clause prompted substantive due process interpretations to be urged on the Supreme Court as a limitation on state legislation. Initially, however, the Supreme Court rejected substantive due process as it came to be understood, including in the seminal "Slaughter-House Cases". Beginning in the 1870s through the late 1880s, the Supreme Court hinted in dicta that various state statutes challenged under a different constitutional provision may have been invalidated under the due process clause. The first case to invalidate a state government economic regulation under this theory was "Allgeyer v. Louisiana" in 1897 which interpreted the word "liberty" in the due process clause to mean economic liberty. The Supreme Court would go on to impose on both federal and state legislation a firm judicial hand on property and economics right until the Great Depression in the 1930s.
The Court typically invalidated statutes during the "Lochner" era (named after "Lochner v. New York") by declaring the statutes in violation of the right to contract. The Court invalidated state laws prohibiting employers from insisting, as a condition of employment, that their employees agree not to join a union. The Court also declared a state minimum wage law for women unconstitutional. Because many of the first applications protected the rights of corporations and employers to be free of governmental regulation, some scholars believe that substantive due process developed as a consequence of the Court's desire to accommodate 19th-century railroads and trusts.
Later development.
The end of the "Lochner" era came in 1937 with the Supreme Court's holding in "West Coast Hotel Co. v. Parrish". In that case, the Court upheld the state of Washington's "Minimum Wages for Women" act, reasoning that the Constitution permitted the restriction of liberty of contract by state law where such restriction protected the community, health and safety, or vulnerable groups.
Although economic due process restrictions on legislation were largely abandoned by the courts, substantive due process rights continue to be successfully asserted today in non-economic legislation that affects intimate issues like bodily integrity, marriage, religion, childbirth, child-rearing, and sexuality.
Privacy, which is not mentioned in the Constitution, was at issue in "Griswold v. Connecticut", when the Court held, in 1965, that criminal prohibition of contraceptive devices for married couples violated federal, judicially enforceable privacy rights. The right to contraceptives was found in what the Court called the "penumbras", or shadow edges, of certain amendments that arguably refer to certain privacy rights, such as the First Amendment, which protects freedom of expression; the Third Amendment, which protects homes from being taken for use by soldiers; and the Fourth Amendment, which provides security against unreasonable searches. The penumbra-based rationale of "Griswold" has since been discarded; the Supreme Court now uses the Due Process Clause as a basis for various unenumerated privacy rights, as John Marshall Harlan II had argued in his concurring "Griswold" opinion, instead of relying on the "penumbras" and "emanations" of the Bill of Rights, as the majority opinion did in "Griswold".
Although it has never been the majority view, some have argued that the Ninth Amendment, on unenumerated rights, could be used as a source of fundamental judicially enforceable rights, including a general right to privacy, as discussed by Arthur Goldberg in concurring in "Griswold".
The Supreme Court also recognized a substantive due process right "to control the education of one's children", thus voiding state laws mandating for all students to attend public school. In "Pierce v. Society of Sisters", the Supreme Court said in 1925:
<templatestyles src="Template:Blockquote/styles.css" />We think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only.
Some justices have argued, however, that a substantive due process claim may not be necessary in cases of this type, as it is possible for those laws to be deemed to violate "First Amendment principles" as well. Justice Anthony Kennedy speculated in the 2000 case of "Troxel v. Granville" that current Supreme Court doctrine prohibits the judiciary from using the Due Process Clause instead of an applicable specific constitutional provision if one is available.
The right to marry a person of a different race was addressed in "Loving v. Virginia", in which the Court said, in 1967, that its decision striking down anti-miscegenation laws could be justified either by substantive due process, or by the Equal Protection Clause. The unconstitutionality of bans on and refusals to recognize same-sex marriage was decided partly on substantive due process grounds by "Obergefell v. Hodges" in 2015. A right to have children was addressed in "Skinner v. Oklahoma", but the Court in "Skinner", in 1942, explicitly declined to base its decision on due process but instead cited the Equal Protection Clause since the Oklahoma law required sterilization of some three-time felons but not others. A substantive due process right of a parent to educate a young child (before ninth grade) in a foreign language was recognized in "Meyer v. Nebraska", in 1923, with two justices dissenting, and Justice Kennedy has mentioned that "Meyer" might be decided on different grounds in modern times. Laws that "shock the conscience" of the Court were generally deemed unconstitutional, in 1952, in "Rochin v. California", but in concurring, Justices Black and Douglas argued that pumping a defendant's stomach for evidence should have been deemed unconstitutional on the narrower ground that it violates the Fifth Amendment's right against self-incrimination. The Court, in "O'Connor v. Donaldson", in 1975, said that due process is violated by confining a nondangerous mentally ill person who is capable of surviving safely in freedom. Chief Justice Burger's concurring opinion was that such confinement may also amount to "punishment" for being mentally ill, violating the Court's interpretation of the Eighth Amendment in "Robinson v. California". Freedom from excessive punitive damages was deemed to be a due process right in "BMW v. Gore", in 1996, but four justices disagreed. The Court, in "Cruzan v. Missouri", decided, in 1990, that due process is not violated if a state applies "a clear and convincing evidence standard in proceedings where a guardian seeks to discontinue nutrition and hydration of a person diagnosed to be in a persistent vegetative state".
In 2022, the Court declared that the right to an abortion is not deeply rooted in the nation’s history, and therefore is not among unenumerated rights in the constitution by virtue of the Due Process clause.
Criticisms.
Critics argue that judges are making determinations of policy and morality that properly belong with legislators ("legislating from the bench"), that they are reading doctrines and principles into the Constitution that are not expressed in or implied by the document, or that they are claiming power to expand the liberty of some people at the expense of other people's liberty (such as in "Dred Scott v. Sandford").
Justice Oliver Wendell Holmes Jr., a proponent of legal realism, worried that the Court was overstepping its boundaries and wrote, in 1930, in one of his last dissents:
<templatestyles src="Template:Blockquote/styles.css" />I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable. I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions. Yet I can think of no narrower reason that seems to me to justify the present and the earlier decisions to which I have referred. Of course the words "due process of law", if taken in their literal meaning, have no application to this case; and while it is too late to deny that they have been given a much more extended and artificial signification, still we ought to remember the great caution shown by the Constitution in limiting the power of the States, and should be slow to construe the clause in the Fourteenth Amendment as committing to the Court, with no guide but the Court's own discretion, the validity of whatever laws the States may pass.
Originalists, such as Supreme Court Justices Clarence Thomas, who rejects the substantive due process doctrine, and Antonin Scalia, who also questioned the legitimacy of the doctrine, have called substantive due process a "judicial usurpation" or an "oxymoron". Both Scalia and Thomas occasionally joined Court opinions that mention the doctrine and, in their dissents, often argued over how substantive due process should be employed based on Court precedent.
Many non-originalists, like Justice Byron White, have also been critical of substantive due process. As propounded in his dissents in "Moore v. East Cleveland" and "Roe v. Wade", as well as his majority opinion in "Bowers v. Hardwick", White argued that the doctrine of substantive due process gives the judiciary too much power over the governance of the nation and takes away such power from the elected branches of government. He argued that the fact that the Court has created new substantive rights in the past should not lead it to "repeat the process at will". In his book "Democracy and Distrust", non-originalist John Hart Ely criticized "substantive due process" as a glaring "non sequitur". Ely argued the phrase was both a contradiction in terms, like the phrase "green pastel redness", and radically undemocratic by allowing judges to impose substantive values on the political process. Ely argued that the courts should serve to reinforce the democratic process, not to displace the substantive value choices of the people's elected representatives.
An alternative to strict originalist theory is advocated by former Supreme Court Justice Stephen Breyer, one of the Court's supporters of substantive due process rights. Breyer believes the justices need to look at cases in light of how their decisions will promote what he calls "active liberty", the Constitution's aim of promoting participation by citizens in the processes of government. That is an approach that ostensibly emphasizes "the document's underlying values" and a broad look at a law's purpose and consequences. Critics charge that such an approach would also give judges the ability to look very broadly at the consequences and unwritten purpose of constitutional provisions, such as the Due Process Clause, thus removing issues from the democratic process.
Originalism is usually linked to opposition against substantive due process rights, and the reasons can be found in the following explanation that was endorsed unanimously by the Supreme Court in the 1985 case "University of Michigan v. Ewing": "we must always bear in mind that the substantive content of the [Due Process] Clause is suggested neither by its language nor by preconstitutional history; that content is nothing more than the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments."
Originalists do not necessarily oppose protection of rights protected by substantive due process. Most originalists believe that such rights should be identified and protected legislatively or by further constitutional amendments or other existing provisions of the Constitution. For example, some substantive due process liberties may be protectable according to the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment. Most originalists believe that rights should be identified and protected by the majority legislatively or, if legislatures lack the power, by constitutional amendments.
The original perceived scope of the Due Process Clause was different from the one in use today. For instance, even though many of the Framers of the Bill of Rights believed that slavery violated the fundamental natural rights of African Americans, legal scholar Robert Cover argued in 1975 that a "theory that declared slavery to be a violation of the due process clause of the Fifth Amendment ... requires nothing more than a suspension of reason concerning the origin, intent, and past interpretation of the clause". The Thirteenth Amendment ultimately abolished slavery and removed the federal judiciary from the business of returning fugitive slaves. Until then, it was "scarcely questioned" (as Abraham Lincoln put it) that the Constitution "was intended by those who made it, for the reclaiming of what we call fugitive slaves; and the intention of the law-giver is the law".
Judicial review.
When a law or other act of government is challenged as a violation of individual liberty under the Due Process Clause, courts now use two forms of scrutiny or judicial review. The inquiry balances the importance of the governmental interest being served and the appropriateness of the method of implementation against the resulting infringement of individual rights. If the governmental action infringes upon a fundamental right, the highest level of review, strict scrutiny, is used. To pass strict scrutiny, the law or the act must be both narrowly tailored and the least restrictive means of furthering a compelling government interest.
If the governmental restriction restricts liberty in a manner that does not implicate a fundamental right, rational basis review is used, which determines whether a law or act is rationally related to a legitimate government interest. The government's goal must be something that it is acceptable for the government to pursue. The legislation must use reasonable means to the government's goals but not necessarily the best. Under a rational basis test, the burden of proof is on the challenger so laws are rarely overturned by a rational basis test.
There is also a middle level of scrutiny, called intermediate scrutiny, but it is used primarily in Equal Protection cases, rather than in Due Process cases: "The standards of intermediate scrutiny have yet to make an appearance in a due process case." To pass intermediate scrutiny, the challenged law must further an important government interest by means that are substantially related to that interest.

List of United States Supreme Court cases involving constitutional criminal procedure
The United States Constitution contains several provisions regarding criminal procedure, including: Article Three, along with Amendments Five, Six, Eight, and Fourteen. Such cases have come to comprise a substantial portion of the Supreme Court's docket.
Article Three.
Jury Clause.
"See #Jury Clauses"
Fifth Amendment.
Self-Incrimination Clause.
"Concerning only incrimination that occurs in the courtroom"
Due process.
"See #Criminal due process"
Fourteenth Amendment.
Criminal due process.
"Also the Fifth Amendment"

Maxwell v. Dow
1900 United States Supreme Court case
Maxwell v. Dow, 176 U.S. 581 (1900), is a United States Supreme Court decision which addressed two questions relating to the Due Process Clause. First, whether Utah's practice of allowing prosecutors to directly file criminal charges without a grand jury (this practice goes by the confusing name of information) were consistent with due process, and second, whether Utah's use of eight jurors instead of twelve in "courts of general jurisdiction" were constitutional.
Background.
The passage of the Fourteenth amendment expanded the application of the Bill of Rights to questions of state law with the Privileges or Immunities Clause which states "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States", The landmark 1876 Slaughter-House Cases, set a narrow standard for the class of rights that clause may be applied to.
At the time of the case, the laws of Utah allowed criminal charges by grand jury or by "information", and provided for varying numbers of jurors depending on the court and charges involved.
Charles L. Maxwell was tried and convicted of robbery in Utah in 1898, and was eventually appealed to the Supreme Court, which heard the case in 1899. His suit argued that by denying him a twelve-member jury, and by avoiding the use of a grand jury, Utah's prosecution of him had violated his incorporated Due Process Clause rights.
Opinion of the Court.
Associate Justice Rufus Wheeler Peckham, writing for the majority, held that Maxwell's rights under the Due Process Clause had not been violated. Much of the decision rested on the Slaugher-House Cases precedent.
Associate Justice John Marshall Harlan's lone dissent argued instead for the incorporation of the entirety of the first eight Amendments to the Constitution, a position he had been the first Supreme Court Justice to articulate in his lone dissent in "Hurtado v. California" (1884), and continued to argue in cases such as "Twining v. New Jersey" (1908).
Subsequent developments.
While the Court now incorporates a far greater portion of the Bill of Rights against the states, the specific narrow rights addressed in this case, specifically the right to a grand jury, and the right to a twelve-member jury in criminal cases remain unincorporated. In particular, with regard to jury size for state criminal prosecutions, "Williams v. Florida" (1970), for example, held that six jurors was sufficient; "Ballew v. Georgia" held that five were insufficient eight years later.
References.
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External links.
 is available from: Google Scholar Justia Library of Congress

Incorporation of the Bill of Rights
Application of the U.S. Bill of Rights to states and their local governments
In United States constitutional law, incorporation is the doctrine by which portions of the Bill of Rights have been made applicable to the states. When the Bill of Rights was ratified, the courts held that its protections extended only to the actions of the federal government and that the Bill of Rights did not place limitations on the authority of the state and local governments. However, the post–Civil War era, beginning in 1865 with the Thirteenth Amendment, which declared the abolition of slavery, gave rise to the incorporation of other amendments, applying more rights to the states and people over time. Gradually, various portions of the Bill of Rights have been held to be applicable to state and local governments by incorporation via the Due Process Clause of the Fourteenth Amendment of 1868.
Prior to the ratification of the Fourteenth Amendment and the development of the incorporation doctrine, the Supreme Court in 1833 held in "Barron v. Baltimore" that the Bill of Rights applied only to the federal, but not any state, governments. Even years after the ratification of the Fourteenth Amendment, the Supreme Court in "United States v. Cruikshank" (1876) still held that the First and Second Amendment did not apply to state governments. However, beginning in the 1920s, a series of Supreme Court decisions interpreted the Fourteenth Amendment to "incorporate" most portions of the Bill of Rights, making these portions, for the first time, enforceable against the state governments.
History.
Background.
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No person shall ... be deprived of life, liberty, or property, without due process of law ...
 —Due Process Clause of the Fifth Amendment (1791)
The United States Bill of Rights is the first ten amendments to the United States Constitution. Proposed following the oftentimes bitter 1787–88 battle over ratification of the United States Constitution, and crafted to address the objections raised by Anti-Federalists, the Bill of Rights amendments add to the Constitution specific guarantees of personal freedoms and rights, clear limitations on the government's power in judicial and other proceedings, and explicit declarations that all powers not specifically delegated to Congress by the Constitution are reserved for the states or the people. The concepts enumerated in these amendments are built upon those found in several earlier documents, including the Virginia Declaration of Rights and the English Bill of Rights 1689, along with earlier documents such as Magna Carta (1215). Although James Madison's proposed amendments included a provision to extend the protection of some of the Bill of Rights to the states, the amendments that were finally submitted for ratification applied only to the federal government.
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[N]or shall any State deprive any person of life, liberty, or property, without due process of law ...
 —Due Process Clause of the Fourteenth Amendment (1868)
In the 1833 case of "Barron v. Baltimore", the Supreme Court of the United States held that the Bill of Rights did not apply to state governments; such protections were instead provided by the constitutions of each state. After the Civil War, Congress and the states ratified the Fourteenth Amendment, which included the Due Process Clause and the Privileges or Immunities Clause. While the Fifth Amendment had included a due process clause, the due process clause of the Fourteenth Amendment crucially differed from the Fifth Amendment in that it explicitly applied to the states. The Privileges or Immunities Clause also explicitly applied to the states, unlike the Privileges and Immunities Clause of Article IV of the Constitution. In the "Slaughter-House Cases" (1873), the Supreme Court ruled that the Privileges or Immunities Clause was not designed to protect individuals from the actions of state governments. In "Twining v. New Jersey" (1908), the Supreme Court acknowledged that the Due Process Clause might incorporate some of the Bill of Rights, but continued to reject any incorporation under the Privileges or Immunities Clause.
Incorporation.
The doctrine of incorporation has been law since Presser v. Illinois, 116 U.S. 252 (1886). At 116 U.S. 253 the Supreme Court opined "The provision in the Fourteenth Amendment to the Constitution that "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" does not prevent a state from passing such laws to regulate the privileges and immunities of its own citizens as do not abridge their privileges and immunities as citizens of the United States." The Fifth Amendment Takings Clause was specifically incorporated in "Chicago, Burlington and Quincy Railroad v. City of Chicago" (1897) in which the Supreme Court appeared to require some form of just compensation for property appropriated by state or local authorities (although there was a state statute on the books that provided the same guarantee) or, more commonly, to "Gitlow v. New York" (1925), in which the Court expressly held that States were bound to protect freedom of speech. Since that time, the Court has steadily incorporated most of the significant provisions of the Bill of Rights. Provisions that the Supreme Court has not specifically incorporated include the Fifth Amendment right to an indictment by a grand jury, and the Seventh Amendment right to a jury trial in civil lawsuits.
Incorporation applies both procedurally and substantively to the guarantees of the states. Thus, procedurally, only a jury can convict a defendant of a serious crime, since the Sixth Amendment jury-trial right has been incorporated against the states; substantively, for example, states must recognize the First Amendment prohibition against a state-established religion, regardless of whether state laws and constitutions offer such a prohibition. The Supreme Court declined to apply new procedural constitutional rights retroactively against the states in criminal cases in "Teague v. Lane", 489 U.S. 288 (1989).
Rep. John Bingham, the principal framer of the Fourteenth Amendment, advocated that the Fourteenth applied the first eight Amendments of the Bill of Rights to the States. The U.S. Supreme Court subsequently declined to interpret it that way, despite the dissenting argument in the 1947 case of "Adamson v. California" by Supreme Court Justice Hugo Black that the framers' intent should control the Court's interpretation of the Fourteenth Amendment (he included a lengthy appendix that quoted extensively from Bingham's congressional testimony). Although the "Adamson" Court declined to adopt Black's interpretation, the Court during the following twenty-five years employed a doctrine of selective incorporation that succeeded in extending against the States almost all of the protections in the Bill of Rights, as well as other, unenumerated rights. The Bill of Rights thus imposes legal limits on the powers of governments and acts as an anti-majoritarian/minoritarian safeguard by providing deeply entrenched legal protection for various civil liberties and fundamental rights. The Supreme Court for example concluded in the "West Virginia State Board of Education v. Barnette" (1943) case that the founders intended the Bill of Rights to put some rights out of reach from majorities, ensuring that some liberties would endure beyond political majorities. As the Court noted, the idea of the Bill of Rights "was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts." This is why "fundamental rights may not be submitted to a vote; they depend on the outcome of no elections." The 14th Amendment has vastly expanded civil rights protections and is cited in more litigation than any other amendment to the U.S. Constitution.
Selective versus total incorporation.
In the 1940s and 1960s the Supreme Court gradually issued a series of decisions incorporating several of the specific rights from the Bill of Rights, so as to be binding upon the States. A dissenting school of thought championed by Justices Hugo Black and William O. Douglas supported that incorporation of specific rights, but urged incorporation of all specific rights instead of just some of them. Black was for so-called mechanical incorporation, or total incorporation, of Amendments 1 through 8 of the Bill of Rights. Black felt that the Fourteenth Amendment required the States to respect all of the enumerated rights set forth in the first eight amendments, but he did not wish to see the doctrine expanded to include other, unenumerated "fundamental rights" that might be based on the Ninth Amendment. The Tenth Amendment was excluded from total incorporation as well, due to it already being patently concerned with the power of the states. Black felt that his formulation eliminated any arbitrariness or caprice in deciding what the Fourteenth Amendment ought to protect, by sticking to words already found in the Constitution. Although Black was willing to invalidate federal statutes on federalism grounds, he was not inclined to read any of the first eight amendments as states' rights provisions as opposed to individual rights provisions. Justice Black felt that the Fourteenth Amendment was designed to apply the first eight amendments from the Bill of Rights to the states, as he expressed in his dissenting opinion in "Adamson v. California". This view was again expressed by Black in his concurrence in "Duncan v. Louisiana" citing the Fourteenth Amendment's Privileges or Immunities Clause: "'No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States' seem to me an eminently reasonable way of expressing the idea that henceforth the Bill of Rights shall apply to the States."
Due process interpretation.
Justice Felix Frankfurter, however, felt that the incorporation process ought to be incremental, and that the federal courts should only apply those sections of the Bill of Rights whose abridgment would "shock the conscience," as he put it in "Rochin v. California" (1952). Such a selective incorporation approach followed that of Justice Moody, who wrote in "Twining v. New Jersey" (1908) that "It is possible that some of the personal rights safeguarded by the first eight Amendments against National action may also be safeguarded against state action, because a denial of them would be a denial of due process of law. If this is so, it is not because those rights are enumerated in the first eight Amendments, but because they are of such a nature that they are included in the conception of due process of law." The due process approach thus considers a right to be incorporated not because it was listed in the Bill of Rights, but only because it is required by the definition of due process, which may change over time. For example, Moody's decision in "Twining" stated that the 5th Amendment right against self-incrimination was not inherent in a conception of due process and so did not apply to states, but was overruled in "Malloy v. Hogan" (1964). Similarly, Justice Cardozo stated in "Palko v. Connecticut" (1937) that the right against double jeopardy was not inherent to due process and so does not apply to the states, but that was overruled in "Benton v. Maryland" (1969). Frankfurter's incrementalist approach did carry the day, but the end result is very nearly what Justice Black advocated, with the exceptions noted below.
Incorporation under privileges or immunities.
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No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. ...
 —Privileges or Immunities Clause of the Fourteenth Amendment
Some have suggested that the Privileges or Immunities Clause would be a more appropriate textual basis than the due process clause for incorporation of the Bill of Rights. It is often said that the "Slaughter-House Cases" "gutted the privileges or immunities clause" and thus prevented its use for applying the Bill of Rights against the states. In his dissent to "Adamson v. California", however, Justice Hugo Black pointed out that the "Slaughter-House Cases" did not directly involve any right enumerated in the Constitution:
<templatestyles src="Template:Blockquote/styles.css" />[T]he state law under consideration in the Slaughter-House cases was only challenged as one which authorized a monopoly, and the brief for the challenger properly conceded that there was "no direct constitutional provision against a monopoly." The argument did not invoke any specific provision of the Bill of Rights, but urged that the state monopoly statute violated "the natural right of a person" to do business and engage in his trade or vocation.
Thus, in Black's view, the "Slaughterhouse Cases" should not impede incorporation of the Bill of Rights against the states, via the Privileges or Immunities Clause. Some scholars go even further, and argue that the "Slaughterhouse Cases" affirmatively supported incorporation of the Bill of Rights against the states. In dicta, Justice Miller's opinion in "Slaughterhouse" went so far as to acknowledge that the "right to peaceably assemble and petition for redress of grievances ... are rights of the citizen guaranteed by the Federal Constitution," although in context Miller may have only been referring to assemblies for petitioning the federal government.
In the 2010 landmark case "McDonald v. Chicago", the Supreme Court declared the Second Amendment is incorporated through the Due Process Clause. However, Justice Thomas, the fifth justice in the majority, criticized substantive due process and declared instead that he reached the same incorporation only through the Privileges or Immunities Clause. No other justice attempted to question his rationale. This is considered by some as a "revival" of the Privileges or Immunities Clause, however as it is a concurring opinion and not the majority opinion in the case, it is not binding precedent in lower courts; it is merely an indication that SCOTUS may be inclined, given the proper question, to reconsider and ultimately reverse the "Slaughterhouse Cases".
In the 2019 case "Timbs v. Indiana", the Supreme Court, citing "McDonald," ruled that the Eighth Amendment's Excessive Fines Clause is incorporated through the Due Process Clause. Justice Thomas did not join this opinion; in a separate opinion concurring in the judgment, he once again declared that he would reach the same incorporation through the Privileges or Immunities Clause. Justice Gorsuch took an in-between position. He joined the opinion of the Court, but wrote a short concurrence acknowledging that the Privileges or Immunities Clause might be the better vehicle for incorporation—but ultimately deciding that nothing in the case itself turned on the question of which clause is the source of the incorporation.
Possible consequences of the Privileges or Immunities approach.
In the "Timbs" decision, one of Justice Thomas's stated reasons for preferring incorporation through the Privileges or Immunities Clause was what he perceived as the Court's failure to consistently or correctly define which rights are "fundamental" under the Due Process Clause. In Thomas' view, incorporation through Privileges or Immunities would allow the Court to exclude rights from incorporation which had erroneously been deemed fundamental in previous decisions.
Another difference between incorporation through Due Process versus Privileges or Immunities is that the text of the Privileges or Immunities Clause refers only to the privileges or immunities of "citizens," while the Due Process Clause protects the due process rights of "any person." It is possible that a switch to Privileges or Immunities incorporation would limit protections of the rights of non-citizens against state governments.
Specific amendments.
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 powers to the states and to the people.)
Amendment I.
Guarantee against establishment of religion
Guarantee of free exercise of religion
Guarantee of freedom of speech
Guarantee of freedom of the press
Guarantee of freedom of assembly
Guarantee of the right to petition for redress of grievances
Guarantee of freedom of expressive association
Amendment II.
Right to keep and bear arms
Amendment III.
Freedom from quartering of soldiers
In 1982, the Second Circuit applied the Third Amendment to the states in "Engblom v. Carey". This is a binding authority over the federal courts in Connecticut, New York, and Vermont, but is only a persuasive authority over the other courts in the United 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.