Most of the other limitations are found within the Bill of Rights, the first ten amendments to the 
U.S. Constitution. The states adopted the Bill of Rights in 1791. The statesmen had opposing viewpoints 
concerning how strong the national government should be and how strong state governments should be. 
Even as the original federal constitution was being circulated and ratified, the framers were thinking about 
the provisions that became known as the Bill of Rights. 
Music & Law Exercise 
For a novel way to explore this dispute, listen to the soundtrack from Alexander Hamilton, the Broadway Musical 
composed by Lin-Manuel Miranda. 
The First Amendment limits Congress’s ability to pass laws that limit free speech, freedom of religion, 
freedom of assembly and association. The Second Amendment limits Congress’s ability to outlaw the 
personal possession of firearms. The Fourth, Fifth, Sixth and Eighth Amendments have provisions that 
govern criminal procedure during the investigative, pretrial, and trial phases. The Eighth Amendment sets 
limits on the government’s ability to impose certain types of punishments, impose excessive fines, and set 
excessive bail. The Due Process Clauses of the Fifth and Fourteenth Amendment require that criminal justice 
procedures be fundamentally fair. The Fourteenth Amendment’s Equal Protection Clause requires that, at 
a minimum, there be some rational reason for treating people differently. For example, states can pass laws 
prohibiting minors from purchasing and consuming alcohol because states have a reasonable interest in 
protecting the health and welfare of its citizens. These amendments discussed more fully below, added several 
constraints on Congress. The impact of the Bill of Rights was to place substantial checks on the federal 
government’s ability to define crimes. 
The Incorporation Debate 
When drafted and passed, the U.S. Constitution and the Bill of Rights applied only to the federal 
government. Individual states each had their own guarantees and protections of individuals’ rights found 
in the state constitutions. (See below.) Since 1868, the Fourteenth Amendment has become an important 
tool for making states also follow the provisions of the Bill of the Rights. It was drafted to enforce the Civil 
Rights Act passed in 1866 in the post-Civil War states. Section 1 of the Fourteenth Amendment enjoins 
the states from depriving any person of life, liberty, or property, without due process of law. It prohibits 
states from adopting any laws that abridge the privileges and immunities of the citizens of the United States 
and requires that states not deny any person equal protection under the law. U.S. Const. amend. XIV, § 2. 
The practice of making the states follow provisions of the Bill of Rights is known as incorporation. Over 
decades, the Supreme Court debated whether the Bill of Rights should be incorporated all together, in 
one-fell-swoop, called total incorporation, or piece-by-piece, called selective incorporation. The case-by-
case, bit-by-bit approach won. In a series of decisions, the Supreme Court has held that the Due Process 
Clause of the Fourteenth Amendment makes enforceable against the states those provisions of the Bill of 
Introduction to the American Criminal Justice System
93