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Selective Incorporation And The Fourteenth Amendment


The Fourteenth Amendment, passed in 1868 has maintained a divisive role in criminal procedure. Watson (2009) in her text states” The interpretation is that all citizens are subject to federal law, and that no state may interpret or pass laws that would conflict with specified rights listed in the Amendment federal law”(p.527). The U.S. Supreme Court repeated this interpretation for many years. The Fourteenth Amendment guarantees rights to fairness and order in a series of verdicts. It did not intend the amendment to specify that all states must follow with absolute a certain right in the Bill of Rights should be included in the description of due process.

Selective Incorporation

The Debate whether or not the Fourteenth Amendment makes applicable with regard to the states all of the protections of the Bill of Rights is one of the most important arguments involving interpretation of the United States Constitution. David W. Neuberger (2009) in his text states,” Through a legal doctrine known as incorporation, the Supreme Court ruled that the due process clause of the Fourteenth Amendment made some provisions of the Bill of rights applicable to the states”(p.34). Not all of the protections of the Bill of Rights have been included into the Fourteenth Amendment. Most of the major provisions pertain to the states as well as the national government. Important provisions of the Bill of Rights incorporated through the due process clause of the Fourteenth Amendments are The Fourth Amendment; protection against searches and seizures, the Fifth Amendment; protection against self- incrimination, the Sixth; and prohibition against cruel and unusual punishment.

Selective incorporation combines aspects of two other approaches. This concept accepts the basis of the fundamental rights-ordered liberty approach that Fourteenth Amendment Due Process only protects fundamental rights. Selective incorporation, do not consider all rights in the Bill of Rights fundamental not all rights in the Bill of Rights and some rights outside the Bill of Rights are fundamental. This approach rejects the totality of circumstances to decide whether phases of rights or particular portions of Instead if a right was fundamental, drafters incorporated it into the Fourteenth Amendment through the Due Process Clause and deemed applicable to the states and the federal government.

In Duncan v. Louisiana (1968) the Court stated,” Because we believe that trial by jury in criminal cases is fundamental to the American scheme of Justice, we hold that the Fourteenth Amendment guarantees a right of a jury trial in all criminal cases which- were they to be tried in federal court-would come within the Six Amendments guarantee” (391 US. 145.149 1968).

Totality of Circumstances

The condition that no state shall “deprive any person of life liberty or property was added to the constitution in 1868 (Ferdico, Fradella, and Totten, 2009 pp.12). In Gitlow v. New York, 268 U.S. 652 (1925) the Supreme Court interpreted the phrase “due process of law to mean, without condensation of certain rights guaranteed by the Bill of Rights “(Ferdico, Fradella, and Totten, 2009, pp.12). However, members of the court have argued about which provisions of the Bill of Rights are applicable to the states and to what extent. Three major due process approaches have evolved over the years. The total incorporation made the entire Bill of Rights applicable between the Fourteenth Amendment, Due Process Clause, and the Bill of Rights. However, it said the Due Process Clause had a self-regulating influence that existed separate from the Bill of Rights. Courts looked to the totality of circumstances of the specific case to determine what phase of a right or what portion of it was fundamental. The First, Second, Fourth, and Sixth Amendments are included in the Fourteenth Amendment Due Process Clause. Guarantees in the Bill of Rights concerning criminal procedure that do not apply to the states are: the Fifth Amendment; right to an indictment by a grand jury, the Eighth Amendment; prohibition against excessive bail, and guarantee that convictions be obtained from only unanimous twelve-member juries must be understood in the Sixth Amendment right to a jury trial. However, in Burch v Louisiana, the Supreme Court held that when only there are six jurors on the panel, the verdict must be undisputed( 411 U.S. 13 1979).

Exclusionary Rule and the Fourth Amendment

The Warren Court made fervent use of incorporation in the concept of First Amendment cases. Authorities consider every Bill of Rights guarantee with regard to the criminal process necessary to due process of the law. (Whitebread, 1980, pp.2).The exclusionary rule prohibits the use of evidence or testimony obtained by government officials through means that violate the Fourth, Fifth, or Sixth Amendments to the Constitution (Whitebread, 1980, pp.2). Another underlying principle for the exclusionary rule is that the judiciary should not endorse lawlessness of a coordinated branch of government. Consequently, the exclusionary rule suppresses evidence gathered through illegal arrest, search, and seizure. Week v. United States (1914), a landmark case, contained the first concepts of the exclusionary rule. The Supreme Court held that federal agents should returned evidence gathered through unlawful search and seizure of the petitioner’s home by federal agents should have been returned, cannot be used in a criminal trial, and constituted a prejudicial error (Whitebread, 1980, pp.15). Whitebread (1980) reminds us,” Justice Day stated “ The reason for excluding such illegally obtained evidence: to sanction such proceeding would be to affirm by judicial decision a manifest neglect if not an open defiance of the constitution, intended for the protection of the people of such unauthorized action”(p.15). To the contrary, In Wolf v. Colorado (1949), the ruled that states were not required to adapt the exclusionary rule.

The Court refused to recognize the exclusionary rule in state cases. Authorities convicted the petitioner of conspiracy to perform abortions using illegally seized evidence in violation of the Fourteenth Amendment. The Court examined the issue of whether the exclusionary rule was valid with regard to the protection of the Fourth Amendment. The Court concluded in a divided opinion that the exclusionary rule was not mandated by the constitution as a remedy and was merely a judicially created rule of evidence and not relevant to state courts. In this case, the court left it for the states to determine how to protect the Fourth Amendment guarantees. Twenty-six states adopted the exclusionary rule by 1960 in spite of the Wolfe decision. This trend, despite Wolf, signaled a growing concern that there was no other effective remedy for Fourth Amendment violations. In Mapp v. Ohio (1961), the Supreme Court finally reconsidered the Wolfe Doctrine of 1949.

In Mapp v. Ohio (1961), criminal justice officials convicted the defendant of possession of obscene material based on evidence that they gathered illegally from her home. The Ohio Supreme Court affirmed her conviction. The defendant, American Civil Liberties Union, and the Ohio Civil Liberties Union, appealed to the U.S. Supreme Court, asking that it review and overturn its decision in Wolf. The court overruled in a 5-4 decision holding that the exclusionary rule is binding to the states (Whitebread, 1980, pp.16).


The First Amendment; freedom of speech, Fourth Amendment; protection against search and seizure, Fifth Amendment; protection against self incrimination, Sixth Amendment; right to counsel, and Eight Amendment; cruel and unusual punishment make up the basis of civil rights- the freedoms and privileges that are given to all Americans by their citizenship. Our society recognizes rights that are not in the Constitution, but established by the courts, guaranteed by statue, and are entrenched in our democratic institution. The rights to own, sells, and bequeath property; the right to marry and raise a family, to contract; work and live where one desires; and the right to participate in the cultural, social, and political processes are a few examples of rights considered fundamental to a democracy as those in the Constitution.

The exclusionary rule is a concept that the Supreme Court utilizes as a basis for incorporation. Criminal justice officials use the exclusionary rule for enforcing vital protections of the Bill of Rights. It forbid prosecutors to use illegally gathered evidence during a trial. The Supreme Court adopted the exclusionary rule on three grounds. Nuebaurer (2009) in his text states “The first, is a normative argument: A court of law should not participate in or condone illegal contact (p.253). Second, Neubaurer (2009) remind us, “reflects an empirical assessment: Excluding the evidence will deter law enforcement officials from illegal behavior” (p.253). Finally, Neubaurer (2009) in his text states” justification is based on experience; alternative remedies such as civil suits for damages against police officers for misconduct” The grounds for illegal search and seizure are complex and remain highly controversial today.

The rights of U.S. citizenship are irrefutable; the rights guaranteed by the Constitution are not absolute. If the majority of citizens fail to exercise their right then others may loose their rights. Ferdico, Fradella, and Totten (2009) remind us,” As Justice Oliver Wendell Holmes observed, protection of free speech would not protect a man falsely shouting ‘Fire in a theater and causing panic” Freedom of speech and press does not authorize the publication of obscenity and libel. No one can participate in activity to overthrow the government by force. Civil liberties give all U.S citizens obligations to exercise their rights within a mutual respect and framework for our government and the rights of others.

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