The Foundation: Gitlow v. New York (1925)

The process of selective incorporation began in earnest with Gitlow v. New York, 268 U.S. 652 (1925). Benjamin Gitlow, a member of the Socialist Party, was convicted under New York’s criminal anarchy law for distributing a pamphlet advocating the overthrow of the government. The Supreme Court upheld his conviction on the merits, but in doing so it declared for the first time that the Free Speech Clause of the First Amendment applies to the states through the Due Process Clause of the Fourteenth Amendment. This marked a critical shift: while the Court had long held that the Bill of Rights constrained only the federal government, Gitlow opened the door to applying those protections against state action. Justice Edward Sanford’s opinion reasoned that freedom of speech is a “fundamental” liberty that no state may abridge. Though the Court denied Gitlow relief, the principle of incorporation was planted. Subsequent cases, such as Stromberg v. California (1931) and Near v. Minnesota (1931), quickly built on this foundation, incorporating the freedom of the press and protection against prior restraint.

For more on Gitlow and its impact, see the Oyez summary of Gitlow v. New York.

Expanding the First Amendment: Speech, Press, and Religion

Near v. Minnesota (1931)

In Near v. Minnesota, 283 U.S. 697 (1931), the Court struck down a state law that allowed permanent injunctions against “malicious, scandalous, and defamatory” newspapers. The law had been used to shut down a newspaper critical of local officials. The Court held that the First Amendment’s guarantee against prior restraint (pre-publication censorship) applies to the states. Chief Justice Charles Evans Hughes wrote that “the administration of government has become more complex, the opportunities for malfeasance and corruption have multiplied,” making press freedom essential. This decision ensured that state censorship regimes could not violate the core free-press protections established by the First Amendment.

Cantwell v. Connecticut (1940)

With Cantwell v. Connecticut, 310 U.S. 296 (1940), the Court incorporated the Free Exercise Clause of the First Amendment. The case involved Jehovah’s Witnesses who were convicted for soliciting donations without a state permit and for inciting breach of the peace. The Court unanimously reversed the convictions, holding that the Free Exercise Clause—like the Free Speech Clause—is a fundamental right protected against state abridgment. Justice Owen Roberts explained that the First Amendment’s “free exercise” protection is a “liberty” under the Fourteenth Amendment, preventing states from unduly burdening religious practices without a compelling justification.

Criminal Procedure: The Warren Court’s Incorporation Revolution

Mapp v. Ohio (1961) – Fourth Amendment

Mapp v. Ohio, 367 U.S. 643 (1961), was a landmark case that incorporated the Exclusionary Rule of the Fourth Amendment against the states. In 1957, police forcibly entered Dollree Mapp’s home without a warrant, searching for a bombing suspect but instead finding obscene materials. Mapp was convicted under Ohio law. The Supreme Court reversed, holding that evidence obtained through an unreasonable search and seizure is inadmissible in state courts. Before Mapp, the Fourth Amendment’s prohibition on unreasonable searches applied only to federal law enforcement. By incorporating the Exclusionary Rule, the Court compelled states to follow the same constitutional standard. This decision fundamentally changed law enforcement practices nationwide.

Gideon v. Wainwright (1963) – Sixth Amendment

Perhaps no case better illustrates the moral force of incorporation than Gideon v. Wainwright, 372 U.S. 335 (1963). Clarence Earl Gideon was charged with breaking and entering a poolroom in Florida. Unable to afford a lawyer, he requested that the court appoint one, but Florida law only provided counsel for capital offenses. Gideon represented himself and was convicted. The Supreme Court unanimously ruled that the Sixth Amendment’s right to counsel is a fundamental right that applies to the states through the Fourteenth Amendment. Justice Hugo Black wrote that “lawyers in criminal courts are necessities, not luxuries.” The decision forced states to provide an attorney to any indigent defendant facing a serious criminal charge, dramatically expanding access to justice.

For a rich history of the case, see the Oyez page on Gideon v. Wainwright.

Malloy v. Hogan (1964) and Miranda v. Arizona (1966) – Fifth Amendment

In Malloy v. Hogan, 378 U.S. 1 (1964), the Court incorporated the Self-Incrimination Clause of the Fifth Amendment, holding that states must respect a defendant’s right to remain silent. Two years later, Miranda v. Arizona, 384 U.S. 436 (1966), added procedural teeth: police must inform suspects of their rights to silence and counsel before custodial interrogation. While Miranda is often discussed as a federal rule, it rested on the incorporation of the Fifth and Sixth Amendments, making the now-famous warnings binding on state and local police.

Duncan v. Louisiana (1968) – Sixth Amendment Right to Jury Trial

Duncan v. Louisiana, 391 U.S. 145 (1968), addressed whether the Sixth Amendment’s guarantee of a trial by jury in criminal cases applies to the states. Gary Duncan, an African American teenager, was convicted of simple battery—a misdemeanor—and sentenced to 60 days in jail. Louisiana law did not provide a jury trial for offenses punishable by no more than two years. The Supreme Court reversed, holding that the right to a jury trial is fundamental and therefore incorporated. Justice Byron White reasoned that “the right of trial by jury is essential to the American scheme of justice.” This case illustrates that incorporation is not an all-or-nothing principle; the Court has carefully selected which protections are “fundamental to the American scheme of justice.”

Modern Incorporation: Second Amendment, Eighth Amendment, and Beyond

McDonald v. City of Chicago (2010) – Second Amendment

After the Court recognized an individual right to bear arms in District of Columbia v. Heller (2008), the question remained whether that right applied to states and localities. McDonald v. City of Chicago, 561 U.S. 742 (2010), answered yes. Chicago had a restrictive handgun ban. The Supreme Court held that the Second Amendment is fully applicable to the states via the Fourteenth Amendment’s Due Process Clause. Justice Samuel Alito’s opinion emphasized that the right to self-defense is “deeply rooted in this Nation’s history and tradition.” The case sparked a wave of litigation challenging state and local gun regulations across the country.

Timbs v. Indiana (2019) – Eighth Amendment Excessive Fines Clause

A more recent example is Timbs v. Indiana, 586 U.S. ___ (2019). The state of Indiana sought to forfeit a man’s Land Rover after he sold a small amount of heroin. The vehicle was valued at about $42,000, far exceeding the maximum fine for the crime. The Supreme Court unanimously held that the Eighth Amendment’s Excessive Fines Clause applies to the states. Justice Ruth Bader Ginsburg, writing for the Court, noted that the Excessive Fines Clause is a fundamental protection against government abuse—a protection that should not depend on which state a person lives in. Timbs shows that incorporation remains an active principle in the modern era.

Unincorporated Rights and the Limits of Selective Incorporation

Despite decades of incorporation, not every provision of the Bill of Rights has been applied to the states. The Third Amendment (protection against quartering soldiers) has never been the subject of a direct incorporation case, though lower courts have assumed it applies. More notably, the Fifth Amendment’s Grand Jury Clause—which requires a grand jury indictment for serious federal crimes—has not been incorporated. In Hurtado v. California (1884), the Court held that a state may use a prosecutor’s information instead of a grand jury. That ruling has never been overturned. Similarly, the Eighth Amendment’s prohibition on excessive bail has not been definitively incorporated, though lower courts generally treat it as binding on states. And the Second Amendment itself was only incorporated in 2010—nearly 140 years after the Fourteenth Amendment’s ratification. These gaps remind us that selective incorporation is a gradual, case-by-case process driven by changing societal values and judicial philosophy.

The Impact of Incorporation on American Federalism

The Incorporation Doctrine transformed American federalism. Before the early 20th century, states were largely free to define individual rights within their own constitutions and statutes. Incorporation imposed a national floor of protections, ensuring that no state could deny the fundamental liberties enshrined in the Bill of Rights. This was not without controversy. Dissenters such as Justice John Marshall Harlan (the younger) argued that incorporation upset the proper balance between state and federal power and that the Fourteenth Amendment’s Privileges or Immunities Clause—not Due Process—should have been the vehicle for protecting fundamental rights. That argument gained new attention in Saenz v. Roe (1999) and McDonald, but the Due Process approach remains dominant.

For a deeper dive into the historical debate, see the Cornell Legal Information Institute article on incorporation.

Conclusion: A Still-Unfolding Legacy

The case studies of state laws challenged under the Incorporation Doctrine reveal a living constitution—a document whose protections have been steadily extended to protect individuals from state governments. From Gitlow to Timbs, the Supreme Court has incorporated nearly all of the Bill of Rights’ substantive protections. Yet the process is not mechanical. Each case asks whether a given right is “implicit in the concept of ordered liberty” and “fundamental to the American scheme of justice.” As new rights come before the Court—such as the right to keep and bear arms in public (decided in New York State Rifle & Pistol Ass’n v. Bruen, 2022) or evolving understandings of privacy—the Incorporation Doctrine will continue to shape the relationship between federal and state power.

For a comprehensive list of incorporated and unincorporated rights, visit the Oyez issue page on incorporation.