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Fourteenth Amendment, Section 1 — Incorporation of Bill of Rights

Fourteenth Amendment, Section 1

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Essays on this page (4)

Amdt14.S1.4 Incorporation of Bill of Rights

Amdt14.S1.4.1 Overview of Incorporation of the Bill of Rights

The Bill of Rights, comprising the first ten amendments to the Constitution, protects certain rights belonging to individuals and states against infringement by the federal government. While some provisions of the Constitution expressly prohibit the states from taking certain actions,1 the Bill of Rights does not explicitly bind the states,2 and the Supreme Court in early cases declined to apply the Bill of Rights to the states directly.3 However, following the ratification of the Fourteenth Amendment, the Supreme Court has interpreted the Fourteenth Amendment’s Due Process Clause to impose on the states many of the Bill of Rights’ limitations, a doctrine sometimes called “incorporation” against the states through the Due Process Clause.

In the early years of the Republic, both Congress and the Supreme Court appear to have believed that the Bill of Rights restricted only the federal government, not the states. When Congress was considering the constitutional amendments that later became the Bill of Rights, the Senate rejected an amendment that would have applied to the states, which read: “The equal rights of conscience, the freedom of speech or of the press, and the right of trial by jury in criminal cases shall not be infringed by any State.”4 Beginning with Chief Justice John Marshall’s opinion in the 1833 case Barron v. Baltimore, a number of nineteenth century Supreme Court decisions rejected arguments that the first eight amendments to the Constitution should limit the states’ ability to restrict protected rights.5

Following the ratification of the Fourteenth Amendment in 1868, the Court changed course and held that the Due Process Clause of the Fourteenth Amendment prohibits the states from depriving their citizens of certain privileges and protections contained in the Bill of Rights.6 Subsequent decisions of the Court have held that many provisions of the Bill of Rights bind the states; however, there are some Bill of Rights provisions that the Court has not applied to the states.7

Notes
  1. See, e.g., U.S. CONST. art. I, § 10, cl. 1 (“No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.”). ↩
  2. The First Amendment provides that “Congress shall make no law” contrary to its protections. U.S. CONST. amend. I. Other Bill of Rights Amendments provide that certain rights “shall not be infringed,” U.S. CONST. amend. II, or “shall not be violated,” U.S. CONST. amend. IV, or otherwise require or prohibit certain government actions without specifying the relevant government entity, e.g., U.S. CONST. amends. III, V, VI, VII, VIII. ↩
  3. See, e.g., Barron v. Baltimore 32 U.S. (7 Pet.) 243 (1833). ↩
  4. 1 ANNALS OF CONGRESS 755 (August 17, 1789). James Madison declared the rejected amendment to be “the most valuable of the whole list.” Id. ↩
  5. 32 U.S. (7 Pet.) 243 (1833). See also Livingston’s Lessee v. Moore, 32 U.S. (7 Pet.) 469 (1833); Permoli v. Municipality No. 1, 44 U.S. (3 How.) 589, 609 (1845); Fox v. Ohio, 46 U.S. (5 How.) 410 (1847); Smith v. Maryland, 59 U.S. (18 How.) 71 (1855); Withers v. Buckley, 61 U.S. (20 How.) 84 (1858); Pervear v. Massachusetts, 72 U.S. (5 Wall.) 475 (1867); Twitchell v. Commonwealth, 74 U.S. (7 Wall.) 321 (1869). The Ninth and Tenth Amendments do not enumerate separate substantive rights for protection. See Amdt9.1 Overview of Ninth Amendment, Unenumerated Rights; Amdt10.1 Overview of Tenth Amendment, Rights Reserved to the States and the People. ↩
  6. See Amdt14.S1.4.2 Early Doctrine on Incorporation of the Bill of Rights. ↩
  7. See Amdt14.S1.4.3 Modern Doctrine on Selective Incorporation of Bill of Rights. ↩

Amdt14.S1.4.2 Early Doctrine on Incorporation of the Bill of Rights

Following the ratification of the Fourteenth Amendment, litigants challenging state laws and policies pursued several different strategies to raise constitutional challenges under the Fourteenth Amendment. In early litigation, plaintiffs unsuccessfully invoked the Fourteenth Amendment’s Privileges or Immunities Clause to challenge state regulations.1 Litigants in other cases argued that the Due Process Clause of the Fourteenth Amendment guarantees certain fundamental and essential rights, but did not specifically argue that the Amendment incorporated the Bill of Rights to restrict state government action.2

Beginning in the 1880s, some litigants contended that, although the Bill of Rights as originally ratified did not limit the states, to the extent the Bill of Rights secured and recognized fundamental rights, those rights were rights, privileges, or immunities of citizens of the United States and were now protected against state abridgment by the Fourteenth Amendment. In the 1887 decision Spies v. Illinois, the Court resolved one such case on other grounds.3 In a series of subsequent cases, the Court confronted the argument and rejected it.4 The elder Justice John Marshall Harlan and other Justices dissented in some of these cases, arguing that the Fourteenth Amendment in effect incorporated the Bill of Rights such that its guarantees also restrain the states.5

In 1947, in Adamson v. California, a minority of four Justices would have held that the Fourteenth Amendment “was intended to, and did make the [Fifth Amendment] prohibition against compelled testimony applicable to trials in state courts.”6 Justice Hugo Black, joined by three others, stated that his research into the history of the Fourteenth Amendment left him in no doubt “that the language of the first section of the Fourteenth Amendment, taken as a whole, was thought by those responsible for its submission to the people, and by those who opposed its submission, sufficiently explicit to guarantee that thereafter no state could deprive its citizens of the privileges and protections of the Bill of Rights.”7 Justice Black’s analysis prompted scholarly debate over whether those who drafted and ratified the Fourteenth Amendment intended for the Amendment to apply the Bill of Rights to the states.8 Against that background, beginning at the end of the nineteenth century, the Court issued a series of decisions that imposed restrictions on state governments that were either similar to or directly derived from restrictions the Bill of Rights imposes on the federal government.

Early due process cases did not hold that the Fourteenth Amendment incorporated the Bill of Rights against the states directly but instead held that the Bill of Rights and the Fourteenth Amendment’s Due Process Clause each separately enshrined certain fundamental rights. Thus, in an 1897 case, the Court held that the Fourteenth Amendment’s Due Process Clause forbade the taking of private property without just compensation but did not mention the Just Compensation Clause of the Fifth Amendment.9 In 1908, in Twining v. New Jersey, the Court observed,

[I]t 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 nature that they are included in the conception of due process of law.10

In the 1925 case Gitlow v. New York, the Court said in dictum: “For present purposes we may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgment by Congress—are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.”11 In two opinions from the 1930s, Justice Benjamin Cardozo summarized the doctrine of this period by observing that the Fourteenth Amendment’s Due Process Clause might proscribe a certain state action, not because the proscription was spelled out in one of the first eight amendments, but because certain proscriptions were “implicit in the concept of ordered ‘liberty,’”12 such that state government action that violates them “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”13 As late as 1958, Justice Harlan opined that a state practice violated the Fourteenth Amendment because “[i]t is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.”14

In contrast to the foregoing approach of holding that the Bill of Rights and the Due Process Clause separately protect some of the same rights, the doctrine of incorporation holds that the Due Process Clause renders provisions of the Bill of Rights directly applicable to the states. The practice of looking to the Bill of Rights to identify rights protected by the Fourteenth Amendment emerged in Supreme Court cases in the first half of the twentieth century.15 Some Justices advocated for a doctrine of total incorporation, which would have held that the Fourteenth Amendment’s Due Process Clause applied the Bill of Rights to the states in its entirety.16 Others preferred the doctrine of selective incorporation, which would apply certain fundamental provisions of the Bill of Rights to the states on a case-by-case basis.17 A majority of the Court never embraced total incorporation. Over time, the doctrine of selective incorporation gained prominence, coming to dominate Fourteenth Amendment due process jurisprudence by the 1960s. Thus, in the 1964 case Malloy v. Hogan, Justice William Brennan wrote:

We have held that the guarantees of the First Amendment, the prohibition of

unreasonable searches and seizures of the Fourth Amendment, and the right to

counsel guaranteed by the Sixth Amendment, are all to be enforced against the States

under the Fourteenth Amendment according to the same standards that protect those

personal rights against federal encroachment.18

Similarly, in a 1963 case, Justice Thomas Clark wrote that “this Court has decisively settled that the First Amendment’s mandate that ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ’ has been made wholly applicable to the States by the Fourteenth Amendment.”19

Notes
  1. Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873); see also Amdt14.S1.2.1 Privileges or Immunities of Citizens and the Slaughter-House Cases. ↩
  2. Walker v. Sauvinet, 92 U.S. 90 (1876); United States v. Cruikshank, 92 U.S. 542 (1876); Hurtado v. California, 110 U.S. 516 (1884); Presser v. Illinois, 116 U.S. 252 (1886). ↩
  3. Spies v. Illinois, 123 U.S. 131 (1887). ↩
  4. In re Kemmler, 136 U.S. 436 (1890); McElvaine v. Brush, 142 U.S. 155 (1891); O’Neil v. Vermont, 144 U.S. 323 (1892); Palko v. Connecticut, 302 U.S. 319, 323 (1937), (“We have said that in appellant’s view the Fourteenth Amendment is to be taken as embodying the prohibitions of the Fifth. His thesis is even broader. Whatever would be a violation of the original bill of rights (Amendments I to VIII) if done by the Federal Government is now equally unlawful by force of the Fourteenth Amendment if done by a state. There is no such general rule.”). See Felix Frankfurter, Memorandum on ‘Incorporation,’ of the Bill of Rights Into the Due Process Clause of the Fourteenth Amendment, 78 HARV. L. REV. 746 (1965). ↩
  5. Dissenting in O’Neil v. Vermont, 144 U.S. 323, 370 (1892), Justice Harlan argued that “since the adoption of the Fourteenth Amendment, no one of the fundamental rights of life, liberty or property, recognized and guaranteed by the Constitution of the United States, can be denied or abridged by a State in respect to any person within its jurisdiction. These rights are, principally, enumerated in the earlier Amendments of the Constitution.” Justice Stephen Field took the same position, writing: “While therefore, the ten Amendments, as limitations on power, and so far as they accomplish their purpose and find their fruition in such limitations, are applicable only to the Federal government and not to the States, yet, so far as they declare or recognize the rights of persons, they are rights belonging to them as citizens of the United States under the Constitution; and the Fourteenth Amendment, as to all such rights, places a limit upon state power by ordaining that no State shall make or enforce any law which shall abridge them.” Id. at 363. Justice Harlan reasserted this view in Maxwell v. Dow, 176 U.S. 581, 605 (1900) (dissenting opinion), and in Twining v. New Jersey, 211 U.S. 78, 114 (1908) (dissenting opinion). According to Justice William Douglas, ten Justices who served between the ratification of the Fourteenth Amendment and the 1960s believed that the Amendment incorporated the Bill of Rights, but those Justices never constituted a majority of the Court. Gideon v. Wainwright, 372 U.S. 335, 345–47 (1963) (concurring opinion). See also Malloy v. Hogan, 378 U.S. 1, 4 n.2 (1964). Justice Arthur Goldberg was not included on Justice Douglas’s list, but also expressed this view. Pointer v. Texas, 380 U.S. 400, 410–14 (1965) (concurring opinion). ↩
  6. 332 U.S. 46, 68 (1947) (Black, J., dissenting). ↩
  7. Id. at 74. ↩
  8. Compare I. Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?, 2 STAN. L. REV. 5 (1949) with Graham,Early Antislavery Backgrounds of the Fourteenth Amendment, 1950 WISC. L. REV. 479, 610; Graham, Our ‘Declaratory’ Fourteenth Amendment, 7 STAN. L. REV. 3 (1954); J. TENBROEK, EQUAL UNDER LAW (1965 enlarged ed.). ↩
  9. Chicago, B. & Q. R.R. v. City of Chicago, 166 U.S. 226 (1897). ↩
  10. 211 U.S. 78, 99 (1908). See also Powell v. Alabama, 287 U.S. 45, 67–68 (1932) (quoting Twining and stating that “a consideration of the nature of the right and a review of the expressions of this and other courts, makes it clear that the right to the aid of counsel is of this fundamental character”). ↩
  11. 268 U.S. 652, 666 (1925). ↩
  12. Palko v. Connecticut, 302 U.S. 319, 325 (1937). ↩
  13. Snyder v. Massachusetts, 291 U.S. 97, 105 (1934). Justice Frankfurter embraced this approach to the Fourteenth Amendment’s Due Process Clause, e.g., Rochin v. California, 342 U.S. 165 (1952); Adamson v. California, 332 U.S. 46, 59 (1947) (concurring opinion), as did Justice Harlan, e.g., Benton v. Maryland, 395 U.S. 784, 801 (1969) (dissenting opinion); Williams v. Florida, 399 U.S. 78, 117 (1970) (concurring in part and dissenting in part). For early applications of these principles to void state practices, see Moore v. Dempsey, 261 U.S. 86 (1923); Meyer v. Nebraska, 262 U.S. 390 (1923); Tumey v. Ohio, 273 U.S. 510 (1927); Powell v. Alabama, 287 U.S. 45 (1932); Mooney v. Holohan, 294 U.S. 103 (1935); Brown v. Mississippi, 297 U.S. 278 (1936); Rochin v. California, 342 U.S. 165 (1952). ↩
  14. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958). ↩
  15. E.g., Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) (“The fundamental concept of liberty embodied in [the Fourteenth] Amendment embraces the liberties guaranteed by the First Amendment.”); West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 639 (1943) (discussing “the due process clause of the Fourteenth Amendment as an instrument for transmitting the principles of the First Amendment”); cf. Gitlow, 268 U.S. at 666. ↩
  16. See, e.g., Adamson v. California, 332 U.S. 46, 71–72 (1947) (Black, J., dissenting); O’Neil v. Vermont, 144 U.S. 323, 370 (1892) (Harlan, J., dissenting). ↩
  17. See, e.g., Palko v. Connecticut, 302 U.S. 319, 326 (1937); Adamson, 332 U.S. at 57 (1947) (Frankfurter, J., concurring). ↩
  18. 378 U.S. 1, 10 (1964) (citations omitted). ↩
  19. Abington School Dist. v. Schempp, 374 U.S. 203, 215 (1963). Similar formulations for the Speech and Press Clauses appeared early. E.g., Barnette, 319 U.S. at 639; Schneider v. Irvington, 308 U.S. 147, 160 (1939). In Griffin v. California, 380 U.S. 609, 615 (1965), Justice Douglas stated that “the Fifth Amendment, in its direct application to the Federal Government, and, in its bearing on the States by reason of the Fourteenth Amendment, forbids” the state practice at issue. ↩

Amdt14.S1.4.3 Modern Doctrine on Selective Incorporation of Bill of Rights

Modern Supreme Court doctrine embraces the doctrine of selective incorporation of the Bill of Rights against the states, meaning that the Court has held on a case-by-case basis that many of the provisions of the Bill of Rights limit state government action. Numerous Supreme Court decisions hold that particular provisions of the Bill of Rights have been applied to the states through the Fourteenth Amendment’s Due Process Clause.1 Primarily through the doctrine of selective incorporation, the Court has held that most provisions of the Bill of Rights apply to the states.2

The Court has applied to the states the First Amendment’s3 guarantee of free exercise of religion,4 the prohibition on government establishment of religion,5 the rights of freedom of speech,6 freedom of the press,7 and freedom of assembly,8 and the right to petition the government.9 The Court has also incorporated against the states the Second Amendment right to keep and bear arms10 and the Fourth Amendment right to be free from unreasonable searches and seizures.11 Numerous Supreme Court cases have applied provisions of the Fifth12 and Sixth Amendments13 to restrict state government action. In addition, the Court has applied to the states the Eighth Amendment’s14 restrictions on excessive bail,15 excessive fines,16 and cruel and unusual punishments.17

By contrast, the Court has declined to apply to the states the Fifth Amendment’s right to a grand jury indictment18 and the Seventh Amendment’s guarantee of a jury trial in civil cases in which the amount in controversy exceeds twenty dollars.19 The Court has had no occasion to decide whether the states must comply with the Third Amendment’s limitations on quartering troops in homes.20 The Ninth and Tenth Amendments do not expressly enumerate separate substantive rights for protection,21 though the Court has cited the Ninth Amendment in litigation against a state.22

In deciding whether the Fourteenth Amendment incorporated a specific right against the states, the Court asks whether the right at issue is “both ‘fundamental to our scheme of ordered liberty’ and ‘deeply rooted in this Nation’s history and tradition.’”23 A majority of the Court has consistently held that, if a provision of the Bill of Rights is incorporated against the states, the provision imposes the same substantive limitations on the states and the federal government.24 The Court has thus “rejected the notion that the Fourteenth Amendment applies to the State only a ‘watered-down, subjective version of the individual guarantees of the Bill of Rights.’”25

Notes
  1. E.g., Mapp v. Ohio, 367 U.S. 643 (1961); Klopfer v. North Carolina, 386 U.S. 213 (1967); Duncan v. Louisiana, 391 U.S. 145 (1968); Ashe v. Swenson, 397 U.S. 436 (1970); Baldwin v. New York, 399 U.S. 66 (1970). ↩
  2. In some cases, particularly earlier cases, the Court held that certain rights applied against the states because the rights at issue were fundamental and not merely because they were named in the Bill of Rights and incorporated by the Fourteenth Amendment. E.g., Powell v. Alabama, 287 U.S. 45, 67–68 (1932). For additional discussion of this distinction, see Amdt14.S1.4.2 Early Doctrine on Incorporation of the Bill of Rights. Whichever formulation was originally used, the Court now generally uses the language of incorporation. See Duncan v. Louisiana, 391 U.S. 145, 148 (1968). ↩
  3. See Amdt1.1 Overview of First Amendment, Fundamental Freedoms. ↩
  4. Hamilton v. Regents, 293 U.S. 245, 262 (1934); Cantwell v. Connecticut, 310 U.S. 296, 300, 303 (1940). ↩
  5. Everson v. Bd. of Educ., 330 U.S. 1, 3, 7, 8 (1947); Illinois ex rel. McCollum v. Bd. of Educ., 333 U.S. 203 (1948). ↩
  6. Gitlow v. New York, 268 U.S. 652, 666 (1925); Fiske v. Kansas, 274 U.S. 380 (1927); Stromberg v. California, 283 U.S. 359 (1931). ↩
  7. Near v. Minnesota ex rel. Olson, 283 U.S. 697, 701 (1931). ↩
  8. DeJonge v. Oregon, 299 U.S. 353 (1937). ↩
  9. DeJonge v. Oregon, 299 U.S. at 364, 365; Hague v. CIO, 307 U.S. 496 (1939); Bridges v. California, 314 U.S. 252 (1941). ↩
  10. McDonald v. Chicago, 561 U.S. 742 (2010); see also Amdt2.1 Overview of Second Amendment, Right to Bear Arms. ↩
  11. Wolf v. Colorado, 338 U.S. 25 (1949); Mapp v. Ohio, 367 U.S. 643 (1961); see also Amdt4.2 Historical Background on Fourth Amendment to Amdt4.7.4 Good Faith Exception to Exclusionary Rule. ↩
  12. Benton v. Maryland, 395 U.S. 784 (1969) (double jeopardy); Ashe v. Swenson, 397 U.S. 436 (1970) (collateral estoppel); Malloy v. Hogan, 378 U.S. 1 (1964) (self-incrimination); Griffin v. California, 380 U.S. 609 (1965) (same); Chicago, B. & Q. R.R. v. City of Chicago, 166 U.S. 226 (1897) (just compensation); see also Amdt5.2.1 Historical Background on Grand Jury Clause to Amdt5.9.10 Enforcing Right to Just Compensation. ↩
  13. Klopfer v. North Carolina, 386 U.S. 213 (1967) (speedy trial); In re Oliver, 333 U.S. 257 (1948) (public trial); Duncan v. Louisiana, 391 U.S. 145 (1968) (jury trial); Irvin v. Dowd, 366 U.S. 717 (1961) (impartial jury); Turner v. Louisiana, 379 U.S. 466 (1965) (same); In re Oliver, 333 U.S. 257 (1948) (notice of charges); Pointer v. Texas, 380 U.S. 400 (1965) (confrontation); Douglas v. Alabama, 380 U.S. 415 (1965) (same); Washington v. Texas, 388 U.S. 14 (1967) (compulsory process); Powell v. Alabama, 287 U.S. 45 (1932) (right to counsel); Gideon v. Wainwright, 372 U.S. 335 (1963) (same); see also Amdt6.1 Overview of Sixth Amendment, Rights in Criminal Prosecutions. ↩
  14. See Amdt8.1 Overview of Eighth Amendment, Cruel and Unusual Punishment. ↩
  15. McDonald v. City of Chicago, 561 U.S. 742, 764 n.12 (2010); Schilb v. Kuebel, 404 U.S. 357, 365 (1971). ↩
  16. Timbs v. Indiana, No. 17-1091, slip op. at 2 (2019). ↩
  17. Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947); Robinson v. California, 370 U.S. 660 (1962). ↩
  18. Hurtado v. California, 110 U.S. 516 (1884); see also Amdt5.2.1 Historical Background on Grand Jury Clause to Amdt5.2.3 Military Exception to Grand Jury Clause. ↩
  19. Cf. Adamson v. California, 332 U.S. 46, 64–65 (1947) (Frankfurter, J., concurring). See Minneapolis & St. L. R.R. v. Bombolis, 241 U.S. 211 (1916); see also Amdt7.2.1 Historical Background of Jury Trials in Civil Cases to Amdt7.3.2 Appeals from State Courts to the Supreme Court. ↩
  20. See Amdt3.1 Overview of Third Amendment, Quartering Soldiers. ↩
  21. See Amdt9.1 Overview of Ninth Amendment, Unenumerated Rights; Amdt10.1 Overview of Tenth Amendment, Rights Reserved to the States and the People. ↩
  22. See Griswold v. Connecticut, 381 U.S. 479 (1965). ↩
  23. Timbs v. Indiana, No. 17-1091, slip op. at 7 (2019) (quoting McDonald v. City of Chicago, 561 U.S. 742, 767 (2010)). ↩
  24. Malloy v. Hogan, 378 U.S. 1, 10–11 (1964); Ker v. California, 374 U.S. 23 (1963); Griffin v. California, 380 U.S. 609 (1965); Baldwin v. New York, 399 U.S. 66 (1970); Williams v. Florida, 399 U.S. 78 (1970); Ballew v. Georgia, 435 U.S. 223 (1978); First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 780 n.16 (1978) (specifically the First Amendment Speech and Press Clauses); Crist v. Bretz, 437 U.S. 28 (1978); Burch v. Louisiana, 441 U.S. 130 (1979). ↩
  25. Williams v. Florida, 399 U.S. 78, 106–107 (1970) (Black, J., concurring in part and dissenting in part), quoting Malloy, 378 U.S. at 10–11 (1964). Some Justices have argued for the application of a dual-standard test of due process for the Federal Government and the states. Justice Harlan first took this position in Roth v. United States, 354 U.S. 476, 496 (1957) (concurring in part and dissenting in part). See also Ker v. California, 374 U.S. 23, 45–46 (1963) (Harlan, J., concurring); Williams v. Florida, 399 U.S. 78, 143–45 (1970) (Stewart, J. concurring in part and dissenting in part); Duncan v. Louisiana, 391 U.S. 145, 173–83 (1968) (Harlan, J., dissenting); Bloom v. Illinois, 391 U.S. 194, 211 (1968) (Fortas, J., concurring); Johnson v. Louisiana, 406 U.S. 356, 366 (1972) (Powell, J., concurring); Crist v. Bretz, 437 U.S. 28, 52–53 (1978) (Powell, J., dissenting); Buckley v. Valeo, 424 U.S. 1, 290 (1976) (Rehnquist, J., concurring in part and dissenting in part); First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 822 (1978) (Rehnquist, J., dissenting). Those Justices rejected incorporation and also argued that, if the same limitations were to apply, the standards previously developed for the Federal Government would have to be diluted in order to give the states more leeway in the operation of their criminal justice systems. ↩