The Historic Divide: Bill of Rights and State Action

The United States Constitution, as originally drafted, established a federal government of enumerated powers. The Bill of Rights—the first ten amendments—was added shortly thereafter to place explicit limits on that federal authority. For nearly a century, these protections did not apply to state governments. A citizen whose free speech was suppressed by a state legislature had no recourse under the First Amendment. This dual system of rights left individuals vulnerable to state overreach, a gap that would not be fully addressed until the ratification of the Fourteenth Amendment and the subsequent development of the selective incorporation doctrine.

The Supreme Court’s 1833 decision in Barron v. Baltimore cemented this limitation. John Barron owned a wharf in Baltimore that became unusable when the city diverted streams during street construction. He sued, arguing 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 applied only to the federal government, not to the states. The decision left property owners and, by extension, all citizens subject to state action without the protections enumerated in the first ten amendments. This ruling stood for decades, fueling calls for a constitutional change that would bind the states to the same fundamental guarantees.

The Fourteenth Amendment: A Turning Point

After the Civil War, Congress proposed the Fourteenth Amendment to ensure that former slave states could not strip freedmen of their basic rights. Its ratification in 1868 introduced a new dimension to federal power. The amendment’s first section declared that no state shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The language of the Due Process Clause became the primary vehicle through which the Bill of Rights was later applied to the states.

Yet the full potential of the Fourteenth Amendment was not realized immediately. In the Slaughter-House Cases (1873), the Supreme Court severely limited the scope of the Privileges or Immunities Clause, holding that it protected only those rights that owed their existence to the federal government—a narrow set. This interpretation all but closed the door to incorporation through that clause for nearly 150 years, until a partial revival in McDonald v. Chicago (2010). Instead, the Court turned to the Due Process Clause as the preferred mechanism for applying specific Bill of Rights protections to the states. This gradual, case-by-case approach became known as selective incorporation.

Selective Incorporation vs. Total Incorporation

Two competing theories emerged in the early twentieth century. Justice Hugo Brandeis and later Justice William Brennan advocated for “total incorporation” – the idea that the Due Process Clause should apply the entire Bill of Rights to the states, in one sweeping move. Justice Louis Brandeis and others, however, favored a more incremental approach, arguing that only those rights deemed “fundamental to the American scheme of justice” should be incorporated. The Court adopted the latter view, examining each right individually to determine whether it is essential to liberty and justice.

Under selective incorporation, the Court asks: Is this right “implicit in the concept of ordered liberty”? If yes, it is incorporated through the Due Process Clause and applies to the states. If no, the right remains only a federal restriction. This case-by-case method has allowed the Court to adapt constitutional protections to changing circumstances, but it has also invited criticism for its subjectivity and inconsistency.

Landmark Cases in Selective Incorporation

The First Amendment: Freedom of Speech and Press

The Supreme Court first crossed the incorporation threshold in Gitlow v. New York (1925). Benjamin Gitlow was convicted under New York’s criminal anarchy law for publishing a socialist pamphlet. He argued the law violated his First Amendment right to free speech – a right that, at the time, applied explicitly only to Congress. In a pivotal opinion, the Court assumed 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.” While the Court ultimately upheld Gitlow’s conviction on the merits, the dicta established the principle that the First Amendment restricts state and local governments. Subsequent cases incorporated the remaining parts of the First Amendment: De Jonge v. Oregon (1937) incorporated the right of assembly; Cantwell v. Connecticut (1940) incorporated the free exercise of religion; and Everson v. Board of Education (1947) incorporated the establishment clause.

The Fourth Amendment: Unreasonable Searches and Seizures

The Fourth Amendment protects against unreasonable searches and seizures and requires warrants based on probable cause. In Wolf v. Colorado (1949), the Court incorporated the right to be free from unreasonable searches—but notably did not incorporate the exclusionary rule, which holds that evidence obtained illegally cannot be used at trial. This created a patchwork where individuals could sue for a violation but could not suppress evidence in state court. The Court changed course in Mapp v. Ohio (1961). Dollree Mapp was convicted of possessing obscene materials after police searched her home without a valid warrant. The Supreme Court reversed, holding that the exclusionary rule is an essential part of the Fourth Amendment and must be applied to the states. As Justice Tom Clark wrote, “The ignoble shortcut to conviction left open to the state tends to destroy the entire system of constitutional restraints on which the liberties of the people rest.” Mapp effectively completed the incorporation of the Fourth Amendment and revolutionized state criminal procedure.

The Fifth Amendment: Self-Incrimination and Double Jeopardy

The Fifth Amendment includes protections against self-incrimination, double jeopardy, and the right to grand jury indictment. The most famous incorporation occurred in Miranda v. Arizona (1966), which applied the self-incrimination clause to the states and established the Miranda warnings. But the double jeopardy clause was incorporated earlier in Benton v. Maryland (1969), which overruled the longstanding precedent of Palko v. Connecticut (1937). The grand jury indictment right has never been incorporated; the Court held in Hurtado v. California (1884) that it is not a fundamental right required by due process. Thus, states are free to use no indictment by grand jury (they can proceed by information) as long as they provide alternative protections.

The Sixth Amendment: Fair Trial Protections

Few cases are as iconic in incorporation lore as Gideon v. Wainwright (1963). Clarence Earl Gideon was charged with breaking into a pool hall in Florida. Unable to afford a lawyer, he requested one, but Florida law provided counsel only for capital offenses. Gideon defended himself and was convicted. In a handwritten petition to the Supreme Court, he argued his Sixth Amendment right to counsel had been violated. The Court agreed unanimously, overruling its earlier decision in Betts v. Brady (1942) and holding that the right to counsel for indigent defendants is fundamental to a fair trial and applies to states through the Fourteenth Amendment. The case expanded public defender systems nationwide. The Court also incorporated the right to a speedy trial (Klopfer v. North Carolina, 1967), the right to a public trial (In re Oliver, 1948), the right to confront witnesses (Pointer v. Texas, 1965), and the right to compulsory process to obtain witnesses (Washington v. Texas, 1967). The right to a jury trial in criminal cases was incorporated in Duncan v. Louisiana (1968), though the Court later allowed non-unanimous juries for minor offenses.

The Second Amendment: An Individual Right to Keep and Bear Arms

For decades, the Second Amendment was not incorporated because the Court had not determined whether it protected an individual right independent of militia service. That changed in District of Columbia v. Heller (2008), which held that the Second Amendment protects an individual right to possess a firearm for self-defense in the home. Two years later, in McDonald v. Chicago (2010), the Court held that this right is “fundamental to the nation’s scheme of ordered liberty” and applies to state and local governments through the Due Process Clause. Justice Samuel Alito’s plurality opinion cited the historical understanding of the right and the need for protection against state oppression. McDonald prompted a new wave of litigation challenging state and local firearm regulations under the Second Amendment.

The Eighth Amendment: Cruel and Unusual Punishment

Protection against excessive bail and cruel and unusual punishment was incorporated through a series of cases. The prohibition on cruel and unusual punishment was applied to the states in Robinson v. California (1962), which struck down a law making drug addiction a crime. The excessive fines clause, the last element of the Eighth Amendment to be tested, was incorporated in Timbs v. Indiana (2019). Justice Ruth Bader Ginsburg wrote for a unanimous Court that the protection against excessive fines is “incorporated by the Fourteenth Amendment’s Due Process Clause because it is fundamental to our scheme of ordered liberty.” The case involved the forfeiture of a Land Rover SUV worth more than $40,000 when Tyson Timbs was convicted of selling a small amount of drugs. The Court’s decision reinforced that all eight amendments with substantive protections (the Seventh Amendment’s civil jury trial right is partially incorporated) now apply to the states through selective incorporation.

The Effect of Selective Incorporation on State Constitutional Rights

Floor, Not Ceiling: State Protections Can Exceed Federal Minimums

A critical aspect of selective incorporation is that the incorporated right serves as a floor – a minimum standard of protection that states cannot fall below. But states are free to provide greater protections under their own constitutions. This is known as the “new judicial federalism.” For example, the First Amendment prohibits prior restraints on speech, but some state constitutions offer even broader protections for expressive activities, such as free speech in shopping malls. The California Supreme Court, relying on the state’s free speech clause, has enforced speech rights in private shopping centers even though the U.S. Supreme Court ruled the federal Constitution does not require it (Pruneyard Shopping Center v. Robins, 1980). Similarly, some states have interpreted their own search and seizure clauses to be more restrictive than the Fourth Amendment, requiring warrants for aerial surveillance or drug testing.

State Court Interpretation Shapes Rights

State supreme courts have developed independent doctrines to interpret their constitutions, sometimes diverging from federal precedent. This has become especially important in criminal procedure. For instance, many states have rejected the “good faith exception” to the exclusionary rule that the U.S. Supreme Court adopted in United States v. Leon (1984). These states hold that evidence obtained from a search warrant based on a deficient affidavit must be suppressed, even if police acted in good faith. In the area of free expression, a surprising number of states have extended First Amendment-like protections to hate speech, while the federal standard under R.A.V. v. City of St. Paul (1992) is that viewpoint-based restrictions are presumptively unconstitutional. This dual constitutional landscape means that a person’s rights can vary depending on which state they live in – but only in the direction of more protection, never less.

Federalism and Dynamic Tension

Selective incorporation has been criticized for undermining state sovereignty by imposing uniform national standards. Yet it also respects the federalist structure by allowing states to experiment with their own constitutional provisions—as long as they do not violate the federal floor. This dynamic tension preserves a role for state courts in refining individual liberties. States can act as laboratories of democracy, testing alternative approaches that may later influence federal jurisprudence. For example, several states had already recognized a right to education funding equity under their own constitutions before the U.S. Supreme Court declined to recognize a federal right (San Antonio Independent School District v. Rodriguez, 1973). Similarly, state courts have taken the lead in recognizing rights to marriage equality (prior to Obergefell v. Hodges), gender equality, and privacy.

Criticisms and Contemporary Debates

The Subjectivity of “Fundamental Rights”

Selective corporations rests on a judgment about which rights are “fundamental to ordered liberty.” Critics argue this test is inherently subjective and allows the Court to impose its own policy preferences. Justice Hugo Black, a leading proponent of total incorporation, warned that selective incorporation gave the justices unchecked discretion “to roam at large” in determining which rights to protect. Recent debates illustrate the point: the Court has incorporated the right to bear arms but has declined to incorporate the Second Amendment right in a way that would guarantee open carry. Some scholars contend that the Privileges or Immunities Clause, not the Due Process Clause, was the intended vehicle for incorporation, and that the Court’s reliance on substantive due process has no textual basis. McDonald v. Chicago revived that argument, but only Justice Thomas fully endorsed it.

The Unfinished Work of Incorporation

Not every provision of the Bill of Rights has been incorporated. The Third Amendment (quartering soldiers) has never been incorporated because no case has reached the Court. The Fifth Amendment’s grand jury indictment requirement remains unincorporated. The Seventh Amendment’s right to a civil jury trial is only partially incorporated; the Court allows states to assign factual findings to judges in civil cases. Other provisions, like the In Excessive Bail Clause of the Eighth Amendment, were only recently incorporated by Timbs. The Court has also avoided incorporating the Second Amendment in contexts beyond the home, leaving open the question of whether it applies to public carry. This incomplete incorporation leaves lower courts and states to guess about future rulings, leading to inconsistent interim outcomes.

The Political and Policy Stakes

Selective incorporation remains highly political. Conservative justices often emphasize federalism and restraint, questioning whether the Court should impose national standards on states. Liberal justices tend to advocate for broad protections of individual rights, viewing incorporation as essential to equal citizenship. Yet this alignment can reverse depending on the right: the Second Amendment incorporation in McDonald was championed by conservatives and opposed by liberals. The direction of incorporation also influences state constitutional rights. When the Court incorporates a right, state courts must interpret the federal standard, but they are also free to develop state law beyond that standard.

Looking Ahead: The Future of State Constitutional Rights

Selective incorporation is now largely complete; most of the Bill of Rights applies to the states. Yet its effects continue to evolve as the Supreme Court refines the scope of each incorporated right. Recent cases like Ramos v. Louisiana (2020) applied the Sixth Amendment’s unanimity requirement for state juries, correcting a major deviation that had been allowed for decades. In the same term, Timbs v. Indiana affirmed that the excessive fines clause can be enforced against states, opening a new avenue for challenging civil forfeiture programs.

Meanwhile, state courts are engaging in robust independent analysis of their own constitutions. The New York Court of Appeals, for instance, ruled that the state constitution provides stronger protections against warrantless surveillance than the Fourth Amendment (People v. Weaver, 2009). The Washington Supreme Court has held that the state constitution’s privacy clause prohibits warrantless GPS tracking even when the federal test permits it. These decisions illustrate that state constitutional law is not merely a secondary system—it is a primary engine of rights protection. As the U.S. Supreme Court becomes more deferential to states in some areas, state courts may become the principal arenas for advancing civil liberties.

Conclusion

Selective incorporation is a cornerstone of American federalism and individual rights. Through a century of case-by-case adjudication, the Supreme Court has woven the Bill of Rights into the fabric of state law, ensuring that fundamental liberties are not left to the whim of state majorities. The doctrine has created a baseline of protection that states cannot breach, while preserving room for state innovation. State constitutions, in turn, have become vital instruments for extending rights beyond the federal minimum. As the constitutional landscape shifts, the interplay between federal incorporation and state interpretation will continue to define the rights Americans actually experience. Understanding selective incorporation is essential for anyone who seeks to grasp how the Constitution reaches into our daily lives—from the moment we speak to the moment we encounter law enforcement.