Unincorporated Rights
Although a large majority of the rights detailed in the Bill of Rights have been incorporated and applied to the states as well as the federal government, there are a few that this process has yet to include, as they have not become relevant in a Supreme Court case. These are:
"No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law" (US Constitution).
This amendment as a whole has not been incorporated because this issue has not come into question since colonial times. A court case regarding this issue has not arisen since the official formation of the United States. "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury" (US Constitution).
The Grand Jury clause of the 5th Amendment has yet to be incorporated and applied to the states. Grand juries do not determine guilt or innocence. Instead, they determine whether probable cause exists to believe that the accused has committed a crime, and they return an indictment (a formal charge against the accused) if they do find probable cause. There has yet to be a Supreme Court case incorporating this part of the amendment. "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law" (US Constitution).
This amendment as a whole has not been incorporated because states have their own constitutions that say that their citizens have the right to a civil jury trial. Because of this being already included in states constitutions, it is has not been officially been incorporated by the U.S. Supreme Court. It can be found specifically in Article One of New Jersey's state constitution (Information for Jurors). "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted" (US Constitution).
The excessive bail clause has not been incorporated because for minor crimes the bail for a specific crime is already decided before the arraignment of the defendant. For more serious crimes such as treason or murder a judge can choose to not set bail because the person is a flight risk or can commit more crimes (US Legal). |