Editing Hugo Black (section)

===Bill of Rights applicable to states, or "incorporation" question===
One of the most notable aspects of Justice Black's jurisprudence was the view that the entirety of the federal Bill of Rights was applicable to the states. Originally, the Bill of Rights was binding only upon the federal government, as the Supreme Court ruled in ''[[Barron v. Baltimore]]'' (1833). According to Black, the Fourteenth Amendment, ratified in 1868, "incorporated" the Bill of Rights, or made it binding upon the states as well. In particular, he pointed to the [[Privileges or Immunities Clause]], "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." He proposed that the term "privileges or immunities" encompassed the rights mentioned in the first eight amendments to the Constitution.<ref name="Ball (2006)" />{{rp|212–213}}

Black first expounded this theory of incorporation when the Supreme Court ruled in ''[[Adamson v. California]]'' (1947) that the [[Fifth Amendment to the United States Constitution|Fifth Amendment]]'s [[right to silence|guarantee against self-incrimination]] did not apply to the states. It was during this period of time that Hugo Black became a disciple of [[John Lilburne]] and his claim of 'freeborn rights'.<ref name=Lilburne>[[John Lilburne]]. ''The Pedigree of America's Constitution: An Alternative Explanation''. Gilder, Eric and Hagger, Mervyn. British and American Studies (University of the West, Timișoara) 14 (2008): 217–226.{{cite web|url=http://www.johnlilburne.com/reference/hugolblack.html |title=John Lilburne Research Institute - Reference - Hugo L. Black and John Lilburne |access-date=August 24, 2010 |url-status=dead |archive-url=https://web.archive.org/web/20100828111629/http://www.johnlilburne.com/reference/hugolblack.html |archive-date=August 28, 2010 }} Retrieved June 24, 2010</ref> In an appendix to his dissenting opinion, Justice Black analyzed statements made by those who framed the Fourteenth Amendment, reaching the conclusion that "the Fourteenth Amendment, and particularly its privileges and immunities clause, was a plain application of the Bill of Rights to the states."<ref>{{cite web|url=http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=332&invol=46|title=FindLaw's United States Supreme Court case and opinions.|website=Findlaw|access-date=February 19, 2006|archive-date=August 9, 2011|archive-url=https://web.archive.org/web/20110809182337/http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=332&invol=46|url-status=live}}</ref>

Black's theory attracted the support of Justices such as Frank Murphy and William O. Douglas. However, it never achieved the support of a majority of the court.<ref name="Ball (2006)" />{{page needed|date=December 2020}} The most prominent opponents of Black's theory were Justices [[Felix Frankfurter]] and [[John Marshall Harlan II]].<ref name="Ball (2006)" />{{page needed|date=December 2020}} Frankfurter and Harlan argued that the Fourteenth Amendment did not incorporate the Bill of Rights ''[[wikt:per se|per se]]'', but merely protected rights that are "implicit in the concept of ordered liberty", which was the standard [[Justice Cardozo]] had established earlier in ''[[Palko v. Connecticut]]''.{{Citation needed|date=September 2019}}

The Supreme Court never accepted the argument that the Fourteenth Amendment incorporated the entirety of the Bill of Rights.<ref>{{cite web |url=http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/incorp.htm |title=The Fourteenth Amendment and the Incorporation Debate |publisher=Law.umkc.edu |access-date=September 6, 2008 |url-status=dead |archive-url=https://web.archive.org/web/20081019181827/http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/incorp.htm |archive-date=October 19, 2008 }}</ref> However, it did agree that some "fundamental" guarantees were made applicable to the states. For the most part, during the 1930s, 1940s, and 1950s, only [[First Amendment to the United States Constitution|First Amendment]] rights (such as free exercise of religion and freedom of speech) were deemed sufficiently fundamental by the Supreme Court to be incorporated.{{Citation needed|date=September 2019}}

However, during the 1960s, the court under Chief Justice Warren took the process much further, making almost all guarantees of the Bill of Rights binding upon the states.<ref>{{cite web|url=http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/belknap605.htm |title=The Supreme Court Under Earl Warren, 1953–1969 |publisher=Bsos.umd.edu |access-date=September 6, 2008 |url-status=dead |archive-url=https://web.archive.org/web/20090812060843/http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/belknap605.htm |archive-date=August 12, 2009 }}</ref> Thus, although the court failed to accept Black's theory of total incorporation, the result of its jurisprudence is very close to what Black advocated. Today, the only parts of the first eight amendments that have not been extended to the states are the [[Third Amendment to the United States Constitution|Third]] and [[Seventh Amendment to the United States Constitution|Seventh]] Amendments, the [[grand jury]] clause of the [[Fifth Amendment to the United States Constitution|Fifth Amendment]], the [[Eighth Amendment to the United States Constitution|Eighth Amendment]]'s protection against [[excessive bail]], and the guarantee of the [[Sixth Amendment to the United States Constitution|Sixth Amendment]], as interpreted, that criminal juries be composed of 12 members.<ref>{{cite web|url=http://www.billofrightsinstitute.org/Teach/freeResources/LandmarkSupremeCourtCases/ |title=BRI |publisher=Billofrightsinstitute.org |access-date=September 6, 2008 |archive-url=https://web.archive.org/web/20080803015232/http://www.billofrightsinstitute.org/Teach/freeResources/LandmarkSupremeCourtCases/ <!--Added by H3llBot--> |archive-date=August 3, 2008}}</ref>