"The process of selectively incorporating the clauses of the Bill of Rights probably began in Twining v. New Jersey (268 U.S. 652 [1925]) which contemplated the incorporation of some of the aspects of the 8th Amendment - not because they were a part of the Bill of Rights but because they seemed to be fundamental to the concept of due process. This process of incorporating parts of the Bill of Rights because of their connection to due process began to run in parallel with the selective incorporation doctrine, where parts of the Bill of Rights were ruled to be enforceable on the states by virtue of the 14th Amendments, whether or not due process applied.
Thus in the early 1960's, the Establishment Clause, the right to counsel, the rights of free speech, assembly, and petition, and the right against unreasonable searches and seizures were quickly incorporated. Since the early 60's, almost every clause in the Bill of Rights has been incorporated (notable exceptions are the 2nd and 3rd Amendments, the grand jury indictment clause of the 5th Amendment, and the 7th Amendment)."
This whole process seems to make for activism in federal judges. Some parts of the Bill or rights get incorporated, others do not without much rhyme or reason other then that the SC at some time decided to incorporate a specific amendment or clause of an amendment.
The relevant part of the 14th amendment says -
"14th 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. "
The earlier examples of incorporation which cover parts of the constitution dealing with due process rights seem to have a solid basis in the 14th amendment but there is nothing in that amendment the provides support for excluding the "notable exceptions" ("the 2nd and 3rd Amendments, the grand jury indictment clause of the 5th Amendment, and the 7th Amendment") while including the rest of the bill of rights.
Tim |
