Incorporation of the Bill of Rights and unconstitutional conditions

Black-letter propositions

1. 01

   The Bill of Rights originally applied only to the federal government, and the Supreme Court has since held that most of its guarantees apply to the states through the Due Process Clause of the Fourteenth Amendment.

2. 02

   The test for incorporation asks whether a particular guarantee is fundamental to our scheme of ordered liberty and system of justice, and not whether some civilized legal system could be imagined that lacked it.

3. 03

   A right that is incorporated applies against the states with the same content as it does against the federal government.

4. 04

   The right to jury trial is incorporated: the Fourteenth Amendment guarantees a jury in all criminal cases that would require one in federal court under the Sixth Amendment (Duncan v. Louisiana).

5. 05

   A crime punishable by two years in prison is a serious crime for which a jury is required, and the penalty authorized for a crime is of major relevance in deciding whether it is serious (Duncan).

6. 06

   The Second Amendment right to keep and bear arms for the purpose of self-defense is incorporated and applies to the states (McDonald v. City of Chicago).

7. 07

   The government may not condition a benefit on the surrender of a constitutional right when the condition leverages funding to regulate protected activity beyond the program itself, though it may define the limits of the program it funds.

8. 08

   A federal funding condition that requires a recipient to affirm a belief that cannot be confined within the government program violates the First Amendment (Agency for International Development v. Alliance for Open Society).

9. 09

   A government agency may condition a land-use permit on a concession by the owner only if the condition furthers the same governmental purpose that would justify denying the permit (Nollan v. California Coastal Commission).

10. 10

    A condition that does not serve the public purpose the government relies on to justify the restriction is not land-use regulation, and requiring it without compensation violates the Takings Clause.

Use this attack sequence under time

Common wrong turns

• Incorporation is not all or nothing, because the Court has incorporated most guarantees one at a time, and the test is fundamentality to ordered liberty.
• The government can say what it will fund, but it cannot compel a recipient to adopt a belief outside the program.
• A permit condition unrelated to the reason the government may deny the permit is a taking of the property interest demanded.

Worked example

A state charges a defendant with a misdemeanor carrying a maximum sentence of two years and refuses his request for a jury, relying on a state law granting juries only in felony cases.

Practice this topic

Incorporation

The Bill of Rights originally applied only to the federal government, as the Supreme Court held in Barron v. Baltimore. McDonald v. City of Chicago, 561 U.S. 742 (2010), explains that the governing incorporation standard is whether a particular Bill of Rights guarantee is fundamental to our scheme of ordered liberty and system of justice, and not whether any civilized system could be imagined that would not accord the particular protection, and it held that the Fourteenth Amendment incorporates the Second Amendment right to keep and bear arms for self-defense.

In Duncan v. Louisiana, 391 U.S. 145 (1968), the Supreme Court held that trial by jury in criminal cases is fundamental to the American scheme of justice, so the Fourteenth Amendment guarantees a right of jury trial in all criminal cases which, if tried in a federal court, would come within the Sixth Amendment. The Court also held that a crime punishable by two years in prison is a serious crime, so the defendant convicted of simple battery in Louisiana was entitled to a jury.

Unconstitutional conditions

In Agency for International Development v. Alliance for Open Society International, Inc., 570 U.S. 205 (2013), the Supreme Court held that a requirement that recipients of federal HIV/AIDS funding adopt a policy opposing prostitution violates the First Amendment, because it compels as a condition of federal funding the affirmation of a belief that by its nature cannot be confined within the scope of the Government program. The Court distinguished conditions that define the limits of the spending program from conditions that leverage funding to regulate speech outside the program itself.

In Nollan v. California Coastal Commission, 483 U.S. 825 (1987), the Court said that the government's power to forbid particular land uses includes the power to condition the use on a concession by the owner, even a concession of property rights, so long as the condition furthers the same governmental purpose advanced as justification for prohibiting the use. It held that the Commission's public-access easement condition did not serve the public purposes related to the permit, so it could not be treated as an exercise of land-use regulation power.

Spending conditions and the First Amendment

In Alliance for Open Society, the Court said that the First Amendment prohibits the government from telling people what they must say, so the policy requirement would plainly violate the First Amendment as a direct regulation, and the question was whether the government could nonetheless impose it as a condition of federal funding. The Spending Clause gives Congress broad discretion to fund private programs or activities for the general welfare and to limit the use of funds to ensure they are used as intended.

The Court drew the line between conditions that define the limits of the government spending program, by specifying the activities Congress wants to subsidize, and conditions that seek to leverage funding to regulate speech outside the contours of the federal program itself. The first kind is permitted, and the second is not.

Frequently asked questions