Introduction: The Constitutional Balancing Act

The relationship between state sovereignty and federal rights is a central theme in American constitutional law. The Framers designed a federal system in which the national government and state governments share power, but the Bill of Rights originally limited only the federal government. The Fourteenth Amendment, ratified in 1868, fundamentally altered this arrangement by introducing the Privileges or Immunities Clause, the Due Process Clause, and the Equal Protection Clause. Courts today face complex decisions when determining how to balance these two principles, especially in cases involving incorporation of the Bill of Rights to the states. This article explores how courts navigate that balance through legal doctrine, precedent, and evolving societal norms.

The Concept of Incorporation

Incorporation refers to the legal process by which the protections of the Bill of Rights are applied to the states through the Fourteenth Amendment. Without incorporation, a state could, for example, establish a state religion or suppress speech critical of the governor, as long as its own constitution permitted it. The Fourteenth Amendment changed the calculus by providing that no state shall “deprive any person of life, liberty, or property, without due process of law.” The Due Process Clause became the primary vehicle for applying specific federal rights against state governments.

Early Resistance to Incorporation

In Barron v. Baltimore (1833), the Supreme Court held that the Bill of Rights applied only to the federal government, not to the states. For decades after the Fourteenth Amendment’s ratification, the Court resisted full incorporation. In the Slaughter-House Cases (1873), the Court narrowly interpreted the Privileges or Immunities Clause, effectively shutting the door on that route. For nearly a century, incorporation proceeded only through the Due Process Clause, and only on a right-by-right basis—a doctrine known as selective incorporation.

Selective Incorporation vs. Total Incorporation

Justice Hugo Black argued for “total incorporation”—that the Fourteenth Amendment made the entire Bill of Rights applicable to the states. The Court, however, adopted a middle path championed by Justice Benjamin Cardozo in Palko v. Connecticut (1937). Cardozo wrote that only those rights “implicit in the concept of ordered liberty” should apply to the states. Over the next several decades, the Court incorporated nearly every provision of the Bill of Rights, including freedom of speech (Gitlow v. New York, 1925), freedom of the press (Near v. Minnesota, 1931), the right to counsel in felony cases (Gideon v. Wainwright, 1963), protection against self-incrimination (Malloy v. Hogan, 1964), and the right to bear arms (McDonald v. City of Chicago, 2010). Only a handful of provisions remain unincorporated, such as the Fifth Amendment’s Grand Jury Clause and the Third Amendment’s quartering requirement.

The Role of the Supreme Court in Shaping Incorporation

The U.S. Supreme Court has played a pivotal role in interpreting the extent of incorporation. Each major decision requires balancing the federal interest in protecting individual rights against the state interest in preserving local autonomy. The Court’s methodology often reveals its underlying philosophy about federalism.

Landmark Incorporation Cases

Gitlow v. New York (1925): The Supreme Court held for the first time that the freedom of speech protected by the First Amendment applies to the states through the Fourteenth Amendment’s Due Process Clause. Although the Court upheld Gitlow’s conviction for advocating anarchy, it established that “freedom of speech and of the press … are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the states.”

Palko v. Connecticut (1937): The Court refused to incorporate the Fifth Amendment’s double jeopardy protection, finding that a state could retry a defendant without violating “a principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” This standard guided later incorporation decisions for decades.

Duncan v. Louisiana (1968): The Court incorporated the Sixth Amendment right to a jury trial in criminal cases, holding that jury trials are fundamental to the American scheme of justice. Justice Byron White emphasized that when a right is “necessary … to ensure a fair and just proceeding,” it must apply equally to state and federal courts.

McDonald v. City of Chicago (2010): In a 5–4 decision, the Court incorporated the Second Amendment right to keep and bear arms for self-defense, striking down Chicago’s handgun ban. The plurality opinion by Justice Samuel Alito relied on the Due Process Clause and noted that the right had deep historical roots and was “fundamental to the scheme of ordered liberty.”

Timbs v. Indiana (2019): The Court unanimously incorporated the Eighth Amendment’s Excessive Fines Clause, requiring states to respect the prohibition on excessive fines. The decision relied on the fact that the protection against excessive fines was “fundamental to our scheme of ordered liberty” and had been recognized in English law since the Magna Carta.

Balancing State Sovereignty and Federal Rights

While the Court has expanded federal protections, it also recognizes the importance of respecting state sovereignty. States have their own constitutions, criminal codes, regulatory schemes, and policy priorities. When a federal right conflicts with a state law, courts must decide whether the state interest justifies the restriction and whether the federal right is truly fundamental.

The Principle of Federalism

The Supreme Court has repeatedly affirmed that the federal government is one of enumerated powers, while states retain broad police powers to protect the health, safety, and morals of their citizens. In United States v. Lopez (1995), the Court struck down a federal law regulating guns near schools, reaffirming that the Constitution does not grant Congress unlimited authority. Similarly, in Printz v. United States (1997), the Court held that the federal government may not commandeer state executive officials to enforce federal gun background check laws. These cases highlight that incorporation does not give the federal government a blank check to regulate state affairs.

The Anti-Commandeering Doctrine

Related to state sovereignty is the anti-commandeering doctrine, which forbids Congress from directly requiring states to implement federal programs. In New York v. United States (1992) and Printz, the Court made clear that the Tenth Amendment reserves to the states the power to administer their own governments. Incorporation does not itself commandeer state resources; it merely sets a floor of protections that states cannot violate. But when federal courts mandate specific state remedies—for example, ordering a state to redesign its parole system—friction can arise.

State Courts and Incorporation

State courts also play a role in balancing sovereignty and rights. Many state constitutions provide broader protections than the federal Bill of Rights. States have the power to interpret their own constitutions independently, as long as they do not fall below the federal minimum. For instance, some state courts have held that their state constitutions protect abortion rights even after Dobbs v. Jackson Women’s Health Organization (2022) overturned Roe v. Wade. This “new judicial federalism” allows states to be laboratories of democracy while still respecting federally incorporated rights.

Courts use various legal tests to strike a balance when state laws conflict with incorporated federal rights. These tests determine whether a state law is justified or unconstitutional.

Strict Scrutiny

The strict scrutiny test is the most demanding standard of judicial review. A state law that burdens a fundamental right, such as freedom of speech or the right to bear arms, must be narrowly tailored to achieve a compelling governmental interest. In District of Columbia v. Heller (2008) (applied to states via McDonald), the Court indicated that many gun regulations would survive strict scrutiny, but a complete ban on handguns did not. Strict scrutiny puts the burden on the state to justify its infringement.

Intermediate Scrutiny

Some rights, such as commercial speech or content-neutral time, place, and manner restrictions, are subject to intermediate scrutiny. The state must show that the law serves an important governmental interest and is substantially related to that interest. In Ward v. Rock Against Racism (1989), the Court applied intermediate scrutiny to a city’s sound-amplification rules, upholding them as reasonable regulations of the time, place, and manner of speech.

Rational Basis Review

For most economic regulations and laws that do not involve fundamental rights or suspect classifications, courts apply rational basis review. The law is presumed constitutional, and the challenger must show that it has no rational relationship to a legitimate government interest. This deferential standard gives states wide latitude to experiment with policy, even if the federal courts might disagree with the wisdom of the law.

The Sliding Scale of Incorporation

Not all Bill of Rights provisions are treated equally. Some rights, like the right to counsel in felony trials (Gideon), are considered so fundamental that they apply fully to the states. Others, like the Sixth Amendment right to a jury trial for petty offenses (Duncan), apply only when serious penalties are at stake. The Court has also recognized that states may impose reasonable procedural variations, as long as they do not undermine the core of the right. For example, in Apodaca v. Oregon (1972), the Court held that states can use non-unanimous juries in criminal cases, even though the federal standard requires unanimity. This case illustrates that incorporation does not always mean identical application.

Recent Developments and Challenges

Recent Supreme Court cases continue to test the limits of incorporation and federal authority. Debates over gun rights, free speech on social media, religious liberty, and privacy highlight ongoing tensions between federal protections and state policies. The composition of the Court has shifted, and some older incorporation precedents are being questioned.

Second Amendment Incorporation After Bruen

In New York State Rifle & Pistol Association v. Bruen (2022), the Court struck down New York’s “proper cause” requirement for concealed carry permits. The majority adopted a new test: modern gun laws must be consistent with the nation’s historical tradition of firearm regulation. This test gives states less discretion and has led to a flood of litigation challenging state gun laws. Some scholars argue that Bruen effectively rebalances the federalism scale by imposing a uniform, history-based standard that limits state innovation. States like California, New Jersey, and Hawaii have been forced to revise their permitting systems or face constitutional challenges.

Free Speech and State Sovereignty

First Amendment incorporation is well established, but modern technology creates new tensions. In Packingham v. North Carolina (2017), the Court struck down a state law banning registered sex offenders from using social media, holding that the law impermissibly restricted access to “the modern public square.” In Moody v. NetChoice, LLC (2024), the Court upheld a preliminary injunction against Florida’s social media law that regulated content moderation, but the decision was narrow and left room for state regulation in some circumstances. These cases show that state attempts to regulate online speech must respect incorporated First Amendment principles, but the precise contours remain contested.

Religious Liberty and Incorporation

The First Amendment’s Free Exercise Clause has been incorporated since Cantwell v. Connecticut (1940). In Employment Division v. Smith (1990), the Court held that neutral, generally applicable laws that incidentally burden religion do not violate the Free Exercise Clause. Congress responded with the Religious Freedom Restoration Act (RFRA), which applies only to the federal government. Many states have enacted their own RFRAs, and state courts often interpret their state constitutions to require strict scrutiny for religious burdens. The interaction between federal incorporation and state religious liberty law continues to evolve, most recently in Fulton v. City of Philadelphia (2021), where the Court declined to overrule Smith but found that Philadelphia’s foster-care contract rules were not neutral or generally applicable.

Substantive Due Process and Incorporation

Incorporation traditionally relies on procedural due process, but substantive due process has also been a vehicle. In Dobbs v. Jackson Women’s Health Organization (2022), the Court overruled Roe v. Wade and Planned Parenthood v. Casey, holding that the Constitution does not confer a right to abortion. The majority reasoned that the right was not deeply rooted in American history. Some commentators worry that Dobbs could undermine other substantive due process rights, such as the right to same-sex marriage (Obergefell v. Hodges, 2015) or the right to contraception (Griswold v. Connecticut, 1965). However, the Court in Dobbs explicitly stated that those other rights are not called into question. The decision illustrates that when the Court reconsiders which rights are “fundamental,” it necessarily rebalances federal power against state sovereignty.

The Future of Incorporation and Federalism

The balance between state sovereignty and federal rights is dynamic. Several trends suggest how courts may approach this balance in the coming years.

Originalism and Incorporation

A majority of the current Supreme Court professes originalist interpretive methods. Originalists often argue that incorporation should be limited to rights that were “understood to be fundamental at the time of the Fourteenth Amendment’s ratification.” In McDonald, Justice Scalia’s concurrence argued for incorporation through the Privileges or Immunities Clause, not the Due Process Clause, and only for rights that “belong to all citizens of the United States” as declared in the original Constitution. This approach could shrink the scope of incorporation if applied strictly. In NYSRPA v. Bruen, the Court’s historical test already reflects originalist influence.

State Constitutions as Independent Protections

Some justices have expressed interest in allowing states greater flexibility, particularly when federal precedents are unclear. Justice Thomas has argued that the Privileges or Immunities Clause is the proper vehicle for incorporation and that states should have wider latitude to define privileges beyond the federal floor. Meanwhile, state courts in New York, California, and Washington have interpreted their own constitutions to protect rights more broadly than the federal Constitution, such as the right to an education or the right to a clean environment. These “horizontal” state protections can coexist with the federal vertical floor.

Horizontal Federalism and Interstate Conflicts

Incorporation also affects horizontal relations between states. When one state enacts a law that impinges on a federally incorporated right, citizens may flee to another state. For example, after McDonald, gun owners from restrictive states like Illinois challenged state laws through litigation, but they also moved to states with permissive carry laws. The Supreme Court’s dormant Commerce Clause doctrine sometimes prevents states from regulating conduct that occurs outside their borders. However, the full Court has not yet addressed how incorporation interacts with interstate travel and choice-of-law issues.

Conclusion

Courts aim to uphold the Constitution’s promise of protecting individual rights while respecting the sovereignty of states. Incorporation is the legal mechanism that defines the floor of protections below which no state may sink. Yet the floor is not a ceiling: states may provide greater protections, and they retain substantial discretion to regulate in areas not covered by incorporated rights. The balancing act requires careful attention to history, text, precedent, and the practical realities of governance. As new technologies, social movements, and legal theories emerge, the Supreme Court will continue to refine the boundaries between state authority and federal constitutional rights. For now, the doctrine of selective incorporation remains the settled framework, and each new case adds another chapter to the evolving story of American federalism.

For further reading, see the Cornell Legal Information Institute article on incorporation, the Oyez collection of Supreme Court cases on incorporation, and the SCOTUSblog analysis of Bruen.