Incorporation of the Bill of Rights

The relationship between you, your state government, and your federal constitutional rights is not as straightforward as it may seem. For most of American history, the freedoms enshrined in the first ten amendments—the Bill of Rights—applied only as restrictions on the federal government, not the states. The legal transformation that changed this reality, making your First Amendment or Fourth Amendment rights enforceable against your own state capitol, is known as the incorporation of the Bill of Rights. This doctrine, built through a century of Supreme Court decisions, fundamentally reshaped American federalism and nationalized the baseline protections for individual liberty.

The Foundational Problem: Barron v. Baltimore and the Fourteenth Amendment

The story begins with a counterintuitive truth: the Bill of Rights was originally a limitation on Congress, not the states. This principle was cemented in the 1833 case Barron v. Baltimore. Barron argued that the city’s actions ruined his wharf, constituting a “taking” of private property without just compensation in violation of the Fifth Amendment. Chief Justice John Marshall, writing for a unanimous Court, rejected this. He held that the Bill of Rights was “intended solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislatures of the states.” For the next several decades, states were free to establish official churches, conduct unreasonable searches, or deny jury trials without violating the U.S. Constitution.

The legal vehicle for change arrived after the Civil War with the Fourteenth Amendment, ratified in 1868. Its first section contains two critical clauses: the Due Process Clause (“nor shall any State deprive any person of life, liberty, or property, without due process of law”) and the Equal Protection Clause. The amendment’s framers argued it was designed to overturn Barron and apply the Bill of Rights to the states, but the Supreme Court initially resisted this reading. In the 1873 Slaughter-House Cases, the Court interpreted the Privileges or Immunities Clause narrowly, effectively closing what many thought was the primary door for incorporation. Attention then turned to the Due Process Clause as the potential mechanism.

The "Fundamental Rights" Test: Palko v. Connecticut

The Court needed a principled way to decide which Bill of Rights protections were so essential they should be binding on the states. It first articulated this standard in the 1937 case Palko v. Connecticut. Palko was convicted of murder and sentenced to life imprisonment. The state appealed and won a new trial, where he was convicted again and sentenced to death. He argued this violated the Fifth Amendment’s protection against double jeopardy, which prohibits being tried twice for the same offense.

Justice Benjamin Cardozo, writing for the Court, refused to incorporate the double jeopardy clause against the states. He devised a test: a right is incorporated through the Due Process Clause only if it is “of the very essence of a scheme of ordered liberty” and a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Under this test, Cardozo distinguished between rights that are fundamental and those that are not. He argued that the specific procedural rule in Palko did not meet this high standard, though other rights like freedom of speech certainly did. This “selective incorporation” approach, case-by-case and right-by-right, became the Court’s chosen path, rejecting the alternative theory of “total incorporation” which would have applied the entire Bill of Rights at once.

The Modern Doctrine: Selective Incorporation in Action

From the 1940s through the 1960s, the Supreme Court used the Palko framework to incorporate most of the Bill of Rights provisions. The process accelerated under the Warren Court, often using the Due Process Clause of the Fourteenth Amendment as the incorporating vehicle. Landmark cases systematically applied fundamental rights to the states:

• First Amendment: Nearly all protections were incorporated early (e.g., Gitlow v. New York, 1925, for speech; Everson v. Board of Education, 1947, for establishment clause).
• Fourth Amendment: Protections against unreasonable searches and seizures and the exclusionary rule were incorporated in Mapp v. Ohio (1961).
• Fifth Amendment: Rights against self-incrimination (Miranda v. Arizona, 1966) and against double jeopardy (later overruling Palko in Benton v. Maryland, 1969) were incorporated.
• Sixth Amendment: The rights to counsel (Gideon v. Wainwright, 1963), confrontation of witnesses, and an impartial jury were all incorporated.
• Eighth Amendment: The prohibition on cruel and unusual punishment was incorporated in Robinson v. California (1962).

The modern test for incorporation evolved from Palko’s “fundamental to ordered liberty” standard. Today, the Court asks whether a right is “fundamental to the American scheme of justice” and “deeply rooted in this Nation’s history and tradition.” This standard was prominently applied in the 2010 case McDonald v. City of Chicago, which incorporated the Second Amendment right to keep and bear arms for self-defense against the states. The McDonald decision confirmed that selective incorporation remains the governing doctrine, while also highlighting the ongoing debate among justices about whether the Due Process Clause or the Privileges or Immunities Clause is the proper textual “home” for incorporation.

Unincorporated Provisions: The Exceptions That Remain

Despite the sweeping trend of incorporation, a few provisions of the Bill of Rights have not been incorporated and thus do not apply to state governments. These are the rare exceptions that remain limitations on only the federal government:

1. The Second Amendment’s “well-regulated Militia” preamble: While the individual right to bear arms is incorporated (McDonald), the prefatory clause about a militia is not a separate, enforceable right against states.
2. The Third Amendment’s prohibition on quartering soldiers in homes: This has never been the subject of a Supreme Court incorporation case and is considered inapplicable to the states due to its historical specificity and lack of modern litigation.
3. The Fifth Amendment’s right to a grand jury indictment: The Court has held that states may use preliminary hearings or prosecutorial information instead of grand juries, as this specific procedure is not deemed “fundamental.”
4. The Seventh Amendment’s right to a jury trial in civil cases: The Court distinguishes between criminal procedural rights (fundamental) and this civil procedural right (not fundamental for incorporation purposes).
5. The Eighth Amendment’s prohibition on excessive fines and bail: The prohibition on “excessive fines” was only very recently incorporated in Timbs v. Indiana (2019), demonstrating that the list of unincorporated rights can still shrink. The “excessive bail” clause technically remains unincorporated but is generally followed by states.

Common Pitfalls

Pitfall 1: Believing incorporation happened all at once. A common misconception is that the Fourteenth Amendment instantly applied the Bill of Rights to the states. In reality, it was a slow, piecemeal judicial process spanning from the 1920s to the 2010s, with most activity concentrated in the mid-20th century.

• Correction: Think of incorporation as a slow-drip process, not a light switch. Each right was examined and incorporated individually through specific Supreme Court cases.

Pitfall 2: Confusing "incorporation" with "application." Students often say a right "applies to the states" without specifying the legal mechanism.

• Correction: Be precise. The right is incorporated against the states via the Due Process Clause of the Fourteenth Amendment. The incorporated right then applies to state and local government actions.

Pitfall 3: Mixing up total vs. selective incorporation theories. It’s easy to blur the doctrinal lines between the rejected idea (total) and the accepted one (selective).

• Correction: Selective incorporation is the established doctrine: the Court chooses which rights are fundamental enough to bind the states. Total incorporation was a competing theory, advocated by Justice Hugo Black, that would have automatically applied the entire Bill of Rights. The Court explicitly adopted the selective approach.

Pitfall 4: Forgetting that unincorporated rights still exist at the federal level. The short list of unincorporated provisions doesn’t mean those rights are unimportant.

• Correction: Remember the context of Barron. These unincorporated rights still act as powerful restrictions on the federal government. Furthermore, many states have analogous protections in their own state constitutions that may be even more expansive.

Summary

• The incorporation of the Bill of Rights is the process by which most protections in the first ten amendments have been applied to state and local governments through the Fourteenth Amendment's Due Process Clause.
• The doctrine evolved from the absolute bar of Barron v. Baltimore (1833), through the “fundamental rights” framework of Palko v. Connecticut (1937), into the modern era of selective incorporation, where rights are incorporated one by one.
• The landmark case McDonald v. City of Chicago (2010) represents the modern application of selective incorporation, applying the Second Amendment to the states and confirming the “deeply rooted in history and tradition” test.
• Nearly all Bill of Rights protections are now incorporated, with rare exceptions including the Fifth Amendment grand jury right and the Seventh Amendment civil jury right.
• This doctrine is the primary reason you can assert the same core constitutional freedoms—like free speech, protection from unreasonable searches, and the right to an attorney—against both your local police department and federal agencies like the FBI.