The concept of incorporation—the process by which the Supreme Court has applied the Bill of Rights to state governments through the Due Process Clause of the Fourteenth Amendment—remains one of the most transformative doctrines in American constitutional law. Over nearly two centuries, the Court’s approach to incorporation has shifted dramatically, reflecting changing views on federalism, individual liberty, and the role of the judiciary. Understanding how different Supreme Court eras have handled incorporation provides essential insight into the ongoing expansion of civil rights and the balance between state and federal authority.

Early Supreme Court Era (1790s–1930s): The Era of Dual Sovereignty

In the earliest decades of the republic, the Bill of Rights was understood to apply exclusively to the federal government. The prevailing doctrine of dual sovereignty held that the states and the national government were separate spheres of authority, each with its own constitutional constraints. The Supreme Court consistently refused to require states to honor the protections listed in the first ten amendments.

Barron v. Baltimore (1833): The Foundational Denial

The seminal case of Barron v. Baltimore (1833) set the tone for the entire pre–Fourteenth Amendment era. John Barron, a wharf owner, sued the city of Baltimore for damaging his property by diverting streams during street construction. He argued that the city had taken his property without just compensation, violating the Fifth Amendment. Chief Justice John Marshall, writing for a unanimous Court, held that the Bill of Rights restricted only the federal government, not the states. The Fifth Amendment’s Takings Clause, Marshall reasoned, “contains no expression indicating an intention to apply them to the state governments.” This interpretation left states free to define their own civil liberties regimes.

The Fourteenth Amendment and Initial Judicial Reluctance

After the Civil War, the adoption of the Fourteenth Amendment in 1868 introduced new language that would eventually become the vehicle for incorporation. Section One provides that no state shall “deprive any person of life, liberty, or property, without due process of law” or “deny to any person within its jurisdiction the equal protection of the laws.” Supporters hoped these clauses would compel states to respect fundamental rights. Yet the Supreme Court in the late nineteenth and early twentieth centuries remained deeply skeptical. In the Slaughter-House Cases (1873), the Court gave a narrow reading to the Privileges or Immunities Clause, effectively gutting its potential as a mechanism for incorporation. Instead, the Court turned to the Due Process Clause as the primary vehicle.

Cases such as Twining v. New Jersey (1908) further illustrated the Court’s resistance. There, the Court acknowledged that some rights might be “fundamental” and therefore protected against state abridgment, but it refused to incorporate the Fifth Amendment privilege against self-incrimination. The Court reasoned that the Due Process Clause protected only those rights “implicit in the concept of ordered liberty,” a phrase that would become central to later incorporation analysis. Through the 1920s, the vast majority of the Bill of Rights remained inapplicable to the states.

The Doctrine of Selective Incorporation Emerges (1920s–1960s)

The modern era of incorporation began in the mid-1920s when the Supreme Court started to apply individual Bill of Rights guarantees to the states on a case-by-case basis. This approach, known as selective incorporation, allowed the Court to protect specific fundamental rights without forcing states to adopt the entire Bill of Rights wholesale.

Gitlow v. New York (1925): The First Breach

The turning point came in Gitlow v. New York (1925). Benjamin Gitlow was convicted under New York’s criminal anarchy law for distributing socialist pamphlets. Although the Court upheld his conviction on the merits, it announced a critical principle: “For present purposes we may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgment by Congress—are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.” This assumption marked the first formal application of a specific First Amendment right to the states. While the Gitlow decision did not reverse the conviction, it opened the door for future incorporation of free speech and press.

Gradual Expansion: The 1930s and 1940s

Following Gitlow, the Court steadily incorporated additional First Amendment rights. Near v. Minnesota (1931) held that prior restraint on publication violated the Fourteenth Amendment, applying the free press clause to states. DeJonge v. Oregon (1937) incorporated the right to peaceable assembly, and Cantwell v. Connecticut (1940) extended the free exercise of religion to state action. By the late 1930s, the Court had firmly established that the First Amendment’s core protections bound the states.

The Court also began addressing criminal procedure rights. In Powell v. Alabama (1932), the notorious “Scottsboro Boys” case, the Court held that the Due Process Clause required states to provide counsel in capital cases where the defendant was incapable of making an adequate defense. This was an early step toward the right to counsel, though it was limited to special circumstances. Palko v. Connecticut (1937) articulated the standard for selective incorporation: only those rights “implicit in the concept of ordered liberty” would be incorporated. Using this test, the Court refused to incorporate the Fifth Amendment’s double jeopardy clause in Palko, though it would later reverse that position.

The Warren Court Revolution (1953–1969)

Chief Justice Earl Warren’s tenure produced the most dramatic expansion of incorporation. The Warren Court aggressively used the Fourteenth Amendment to nationalize criminal procedure rights, transforming state justice systems. Key decisions include:

  • Mapp v. Ohio (1961): Incorporated the Fourth Amendment exclusionary rule, requiring state courts to exclude evidence obtained through illegal searches and seizures.
  • Gideon v. Wainwright (1963): Overruled the “special circumstances” test from Betts v. Brady (1942) and held that the Sixth Amendment right to counsel was fundamental and binding on the states in all felony cases.
  • Malloy v. Hogan (1964): Incorporated the Fifth Amendment privilege against self-incrimination, overruling Twining v. New Jersey.
  • Pointer v. Texas (1965): Applied the Sixth Amendment Confrontation Clause to the states.
  • Klopfer v. North Carolina (1967): Incorporated the Sixth Amendment right to a speedy trial.
  • Duncan v. Louisiana (1968): Incorporated the Sixth Amendment right to trial by jury in serious criminal cases, defining “serious” as offenses punishable by more than six months’ imprisonment.

By the end of the Warren Court, nearly all criminal procedure protections in the Bill of Rights—with the notable exception of the Fifth Amendment grand jury indictment clause—had been incorporated. The Court’s approach was firmly rooted in selective incorporation, rejecting Justice Hugo Black’s call for total incorporation (the view that the Fourteenth Amendment applied the entire Bill of Rights verbatim to the states). Instead, the Court applied each right individually, requiring only a finding of fundamentality.

Modern Era and Near-Complete Incorporation (1960s–Present)

After the Warren era, the Burger and Rehnquist Courts largely preserved the incorporated protections while occasionally expanding them. The most significant modern developments involve the Second Amendment and the Eighth Amendment.

Incorporation of the Second Amendment

For decades, the Supreme Court had not addressed whether the Second Amendment right to keep and bear arms applied to the states. After District of Columbia v. Heller (2008) recognized an individual right for self-defense in federal enclaves, the question quickly arose for state and local laws. In McDonald v. Chicago (2010), a plurality of the Court held that the Second Amendment is incorporated through the Due Process Clause because the right to self-defense is “fundamental to the nation’s system of ordered liberty.” The Court applied the same selective incorporation analysis used for other rights, noting that the right had deep historical roots and was widely recognized by states. Justice Thomas concurred separately, arguing that the Privileges or Immunities Clause was the proper vehicle—a view that has not yet commanded a majority.

Incorporation of the Eighth Amendment

The Eighth Amendment’s protection against cruel and unusual punishment was incorporated early in Robinson v. California (1962), which struck down a California statute making drug addiction a criminal offense as cruel and unusual punishment under the Fourteenth Amendment. More recently, in Timbs v. Indiana (2019), the Court unanimously incorporated the Eighth Amendment’s Excessive Fines Clause, holding that the protection against excessive fines is fundamental and applies to the states. Justice Ginsburg’s opinion noted that the right “is incorporated under the Due Process Clause of the Fourteenth Amendment because it is ‘fundamental to our scheme of ordered liberty’ and ‘deeply rooted in this Nation’s history and tradition.’” This decision left little doubt that the remaining unincorporated clauses—the Third Amendment (quartering soldiers), the Fifth Amendment grand jury indictment clause, and the Seventh Amendment civil jury trial right—could be revisited if appropriate cases arise.

Current Status: What Remains Unincorporated?

As of today, the vast majority of the Bill of Rights has been applied to the states. A short overview of the current status:

  • First Amendment: All major clauses (speech, press, assembly, petition, free exercise, establishment) are fully incorporated.
  • Second Amendment: Incorporated via McDonald (2010).
  • Third Amendment: Not incorporated; no Supreme Court case directly addresses state action. Lower courts have split, but the issue rarely arises.
  • Fourth Amendment: Fully incorporated, including the exclusionary rule.
  • Fifth Amendment: Most clauses incorporated except the grand jury indictment requirement (Hurtado v. California, 1884, still good law). Self-incrimination, double jeopardy, due process, and takings are all incorporated.
  • Sixth Amendment: All rights (speedy and public trial, impartial jury, notice of charges, confrontation, compulsory process, counsel) are incorporated.
  • Seventh Amendment: Right to civil jury trial is not incorporated. The Court has never applied it to the states, and the text of the amendment itself refers to “suits at common law” without mentioning state courts. Most states have their own civil jury trial rights.
  • Eighth Amendment: Cruel and unusual punishment (Robinson 1962) and excessive fines (Timbs 2019) are incorporated. Excessive bail has not been definitively incorporated, though several lower courts assume it is.
  • Ninth and Tenth Amendments: Not incorporated; these amendments are structural rather than individual rights.

Key Doctrinal Debates and Interpretive Approaches

Throughout the history of incorporation, two major competing theories have shaped judicial reasoning: selective incorporation (the dominant approach) and total incorporation (vigorously advocated by Justice Black but never adopted). Justice Frankfurter, in contrast, argued for a “fundamental fairness” standard that looked at the totality of circumstances rather than applying specific provisions. This approach, sometimes called “incorporation by jumble”, was largely abandoned after the Warren Court’s shift toward specific incorporation of discrete rights. The modern Court consistently applies the selective incorporation framework, asking whether a right is “fundamental to the American scheme of justice” and “deeply rooted in this Nation’s history and tradition.” This test was reaffirmed in McDonald and Timbs.

Another ongoing debate concerns the method for determining fundamentality. Some justices, particularly Scalia and Thomas, have emphasized historical analysis of what rights were understood as fundamental in 1868 when the Fourteenth Amendment was ratified. Others, such as Justice Breyer, have favored a more evolving, present-oriented approach that considers contemporary standards of decency. The tension between originalist and living-constitutionalist methods continues to inform incorporation disputes today.

  • Incorporation Doctrine — Cornell Legal Information Institute: A comprehensive overview of the doctrine, key cases, and current status. Learn more at Cornell LII
  • Gitlow v. New York — Oyez: Case page with audio, transcript, and opinion summaries. Listen to oral argument at Oyez
  • McDonald v. Chicago — Oyez: Case materials for the Second Amendment incorporation decision. Read more at Oyez
  • Timbs v. Indiana – SCOTUSblog: Analysis of the excessive fines incorporation case. Visit SCOTUSblog
  • The Constitution of the United States – National Archives: Full text of the Bill of Rights and subsequent amendments. View at the National Archives

Conclusion: The Ongoing Legacy of Incorporation

The Supreme Court’s journey from the early rejection of any state application of the Bill of Rights to the near-complete incorporation we see today represents one of the most profound shifts in American constitutional law. Through selective incorporation, the Court has ensured that fundamental liberties—freedom of speech, religious exercise, the right to bear arms, protections against unreasonable searches and cruel punishments—are guaranteed to all Americans regardless of which state they inhabit. While a few clauses remain unincorporated (most notably the grand jury indictment requirement and the civil jury trial right), the overall trend has been toward nationalizing the core protections of the Bill of Rights. Future Courts may extend incorporation further or grapple with the limits of the doctrine, especially in areas like technology, privacy, and evolving social norms. For now, the doctrine stands as a testament to the judiciary’s role in balancing federalism with the protection of individual rights—a balance that continues to shape American life and law.