Talk:Incorporation of the Bill of Rights

message: I'm removing this portion (under Sixth Amendment) for now:
:Right to a unanimous jury decision
:* This right has not been incorporated against the states. See Apodaca v. Oregon. The Supreme Court has held that 11-1 or 10-2 jury votes are sufficient.
That's not really what Apodaca held.  The four-justice plurality held that there was no constitutional right to a unanimous verdict.   Only a single justice, Justice Powell, concurring in the judgment, held the position that this item is saying: that there is a constitutional right to a unanimous jury decision, but that that right is not incorporated against the states.  Four dissenting justices held the view that there was such a constitutional right, and that it should be incorporated against the states.
If this was rewritten to address these subtleties, I wouldn't object to it.  And, yeahm I see the Apodaca v. Oregon article gets it wrong, too.  I'll drop a note over there as well. 06:20, 14 September 2008 (UTC)
replies: text: In the meantime, Apodaca v. Oregon has been overruled by Ramos v. Louisiana, and this is noted under "Right to trial by impartial jury". I wonder whether there should be a separate heading for this again – on the one hand, it's a right in its own right; on the other hand, it's not explicitly mentioned in the amendment. At Sixth Amendment to the United States Constitution, this is also treated in the section Impartial jury. Joriki (talk) 14:10, 8 August 2023 (UTC)
thread_title: Right to a unanimous jury decision (''Apodaca v. Oregon'')

message: There needs to be a section that includes criticisms of the incorporation doctrine.  — Preceding unsigned comment added by 2601:840:8681:9690:D574:12C1:C3C2:214E (talk) 18:01, 6 July 2022 (UTC)
replies: text: If there were notable criticisms of the incorporation doctrine, it's likely they'd have shown up in the eighteen years this article has existed. Do you have some specific sources you believe are notable? Anastrophe (talk) 18:52, 6 July 2022 (UTC)
replies: text: This is too glib of a response to a legitimate critique. According to this very article, there was a ~50 year gap between the ratification of the Fourteenth Amendment and the first court cases that began interpreting it as mandating incorporation. If you want to ask, "if incorporation was controversial, why hasn't anyone added a criticism section to the Wikipedia article in eighteen years?", I could likewise respond: if incorporation was uncontroversial, why did it take fifty years after the amendment that supposedly mandates it was ratified for the Supreme Court to discover it was in the constitution? Masebrock (talk) 03:25, 20 August 2022 (UTC)
replies: text: Do you have some specific sources that are critical of the incorporation doctrine that you believe are notable? Anastrophe (talk) 03:36, 20 August 2022 (UTC)
thread_title: Criticisms

message: I see some problems in the treatment of the unincorporated rights, but I don't feel knowledgeable enough to address them myself.
The article currently says:
 Provisions that the Supreme Court either has refused to incorporate, or whose possible incorporation have not yet been addressed, include the Fifth Amendment right to an indictment by a grand jury, and the Seventh Amendment right to a jury trial in civil lawsuits.
(On a minor point, I think the prohibition against re-examing facts tried by a jury should be mentioned as a separate third provision here; the section on the Seventh Amendment under "Specific amendments" does so.)
This sentence seems at least misleading to me. For all three provisions, the sections under "Specific amendments" cite Supreme Court opinions that predate the beginning of incorporation in 1925. (Even if incorporation is traced to Chicago, Burlington & Quincy Railroad Co. v. City of Chicago (1897), which the article says is the less common view, two of the three opinions predate even that.) But from that time there are Supreme Court opinions that reject the incorporation of the entire Bill of Rights, such as Barron v. Baltimore (1833); and even Minneapolis & St. Louis R. Co. v. Bombolis, , which is cited for the non-incorporation of the Seventh Amendment, arrives at that result as a special case of the non-incorporation of the entire Bill of Rights (for which it cites lots of precedents).
The formulation "the Supreme Court either has refused to incorporate, or whose possible incorporation have not yet been addressed" suggests (to my mind) that the Supreme Court refused to incorporate some of these provisions when incorporation was already a thing, i.e. that their possible incorporation was addressed after it became possible; but that doesn't seem to be the case. In this sense, the incorporation of all three provisions has "not yet been addressed". So I think this sentence should be rephrased, and the sections under "Specific amendments" should explain that the opinions cited predate incorporation and don't imply that incorporation of these provisions has been specifically rejected.
I'm also wondering whether it's correct that in the section on the Seventh Amendment the subsection "Right to jury trial in civil cases" mentions two cases and the subsection "Re-Examination Clause" only mentions one of them. The one it doesn't mention says "The Seventh Amendment to the Constitution, touching the right of trial by jury, applies only to the courts of the United States." That sounds to me as if the entire amendment doesn't apply, both because "touching the right of trial by jury" is just a description and doesn't imply the restriction "insofar as it touches the right of trial by jury", and also because the proscription against re-examination makes little sense without the right of trial by jury (why should a court not be allowed to re-examine evidence when you're not entitled to have the evidence examined by a jury in the first place?). Joriki (talk) 13:42, 8 August 2023 (UTC)
thread_title:  Unincorporated rights