The Pre-Incorporation Era: States as Sovereigns

Before the 20th century, the Bill of Rights was understood as a set of restrictions on the federal government alone. The original Constitution, as drafted in 1787, contained no bill of rights, and the amendments adopted in 1791 were explicitly directed at Congress: “Congress shall make no law …” (First Amendment). State governments remained free to establish their own religions, restrict speech, conduct warrantless searches, and deny criminal defendants a jury trial — all without running afoul of the U.S. Constitution. This arrangement reflected the early federalist bargain, where states retained broad police powers and the national government was one of limited, enumerated authority.

The turning point came with the ratification of the Fourteenth Amendment in 1868. Its Due Process Clause declared: “No State shall … deprive any person of life, liberty, or property, without due process of law.” For decades, the Supreme Court resisted the notion that this clause could “incorporate” specific provisions from the Bill of Rights against the states. In the Slaughter-House Cases (1873), the Court narrowly interpreted the Privileges or Immunities Clause, effectively gutting it as a vehicle for incorporation. That left the Due Process Clause as the only plausible textual foundation — but the Court would not begin to use it systematically for another half-century.

The Birth of Selective Incorporation: Gitlow v. New York (1925)

The modern doctrine of selective incorporation has its roots in the early 20th century, when the Supreme Court began to examine whether fundamental rights listed in the Bill of Rights were also “liberty” interests protected by the Fourteenth Amendment. The watershed case was Gitlow v. New York, 268 U.S. 652 (1925). Benjamin Gitlow, a socialist, had been convicted under New York’s criminal anarchy law for publishing a manifesto calling for the overthrow of the government. The Court upheld his conviction — finding that the speech posed a clear and present danger — but, critically, it declared 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.”

That statement was technically obiter dictum (a remark made in passing), but it laid the foundation for a revolution in American constitutional law. For the first time, the Court acknowledged that a specific right from the First Amendment applied to the states. Yet the Court did not apply the entire Bill of Rights at once. Instead, it proceeded case by case, right by right — hence the term “selective incorporation.”

Why “Selective” Rather Than “Total”?

Justice John Marshall Harlan (the elder) had advocated for total incorporation through the Privileges or Immunities Clause, but his view never commanded a majority. Later, Justice Hugo Black championed total incorporation via the Due Process Clause, arguing that the Fourteenth Amendment was meant to apply the entire Bill of Rights to the states. The Court rejected that position, preferring a more incremental approach that allowed it to pick and choose which rights were “fundamental to the American scheme of justice.” As a result, some rights — such as the Second Amendment right to keep and bear arms — were not incorporated until 2010, while others, like the Grand Jury Clause of the Fifth Amendment, remain unincorporated to this day.

Key Milestones: From Fourth to Sixth Amendments

After Gitlow, the Court slowly expanded the list of incorporated rights, especially during the Warren Court era (1953–1969). Below are the landmark cases that reshaped state criminal procedure and civil liberties.

Mapp v. Ohio (1961): The Exclusionary Rule Applied to States

In Mapp v. Ohio, 367 U.S. 643 (1961), the Court held that the Fourth Amendment protection against unreasonable searches and seizures — and the exclusionary rule (evidence obtained illegally cannot be used at trial) — applies to state courts. Before Mapp, states were free to use illegally seized evidence if their own laws allowed it. Dollree Mapp’s conviction for possessing obscene materials rested on evidence obtained during an unlawful police search. The Supreme Court reversed, ruling that the Due Process Clause incorporates the Fourth Amendment’s exclusionary rule. This decision dramatically altered state criminal procedure, requiring every police department and state judge to respect the same warrant and search standards that bound federal officers.

Gideon v. Wainwright (1963): Right to Counsel

Clarence Earl Gideon, a poor Florida convict, petitioned the Supreme Court with a handwritten brief arguing that he had been denied Sixth Amendment counsel at trial. In Gideon v. Wainwright, 372 U.S. 335 (1963), the Court unanimously held that the right to assistance of counsel in criminal cases is a fundamental right, incorporated through the Fourteenth Amendment. States are now required to provide a lawyer to any defendant facing serious criminal charges who cannot afford one. This case gave rise to public defender systems across the country and remains a cornerstone of criminal justice reform.

Miranda v. Arizona (1966): The Right to Remain Silent

Perhaps the most famous incorporation case, Miranda v. Arizona, 384 U.S. 436 (1966), applied the Fifth Amendment privilege against self-incrimination to state custodial interrogations. The Court required police to inform suspects of their rights (the familiar “Miranda warnings”) before questioning. The decision was deeply controversial at the time, criticized for handcuffing law enforcement. Yet it has become so embedded in American culture that the warnings are a standard trope in movies and television. Miranda illustrates how selective incorporation can enforce uniform national standards even in the face of strong state resistance.

Additional Warren Court Incorporations

  • First Amendment: Speech (Gitlow), press (Near v. Minnesota, 1931), assembly (De Jonge v. Oregon, 1937), free exercise of religion (Cantwell v. Connecticut, 1940), establishment of religion (Everson v. Board of Education, 1947).
  • Sixth Amendment: Speedy and public trial (Klopfer v. North Carolina, 1967), impartial jury (Duncan v. Louisiana, 1968), confrontation of witnesses (Pointer v. Texas, 1965), compulsory process (Washington v. Texas, 1967).
  • Eighth Amendment: Cruel and unusual punishment (Robinson v. California, 1962).

Selective Incorporation vs. Total Incorporation: The Debate

Justice Hugo Black consistently argued that the Fourteenth Amendment’s Due Process Clause was intended to incorporate the entire Bill of Rights against the states — no more, no less. He believed that total incorporation would avoid the subjectivity of the Court’s “fundamental fairness” test. In Duncan v. Louisiana (1968), Black wrote in concurrence: “I would follow the plain language of the Amendment and incorporate the Bill of Rights into the Fourteenth Amendment in its entirety.”

The majority, led by Justice Byron White, instead continued the selective approach, analyzing each right’s historical and practical importance. The debate raised a deeper philosophical question: Should the Court defer to state autonomy, or should it enforce a uniform national floor of liberty? Selective incorporation won the day, but Justice Black’s dissents remain influential. Some scholars argue that selective incorporation has been too ad hoc, creating a “crazy quilt” of incorporated and unincorporated rights. For example, the Second Amendment remained unincorporated from 1791 until McDonald v. Chicago (2010), even though the right was clearly “fundamental” to the founders. By contrast, the Third Amendment (quartering soldiers) has never been incorporated, likely because no modern case has required it.

The Unincorporated Rights: Grand Jury and More

Not every right in the Bill of Rights has been applied to the states. The most notable holdout is the Fifth Amendment’s Grand Jury Clause, which requires federal prosecutions for serious crimes to be initiated by a grand jury indictment. The Supreme Court held in Hurtado v. California (1884) that the Due Process Clause does not require states to use grand juries. Many states instead use “information” procedures. Similarly, the Second Amendment was only incorporated in 2010 (McDonald v. Chicago), while the Third Amendment has never been incorporated (though no state is known to quarter soldiers in peacetime). The Seventh Amendment right to a civil jury trial has been partially incorporated: the Court has held that states are not required to provide civil juries in the same manner as federal courts, though most states do.

Modern Applications and Unresolved Questions

Selective incorporation continues to shape civil rights protections in the 21st century, often in novel contexts the framers could not have anticipated.

Privacy and Reproductive Rights

The right to privacy — though not explicitly mentioned in the Bill of Rights — has been recognized as a “liberty” interest protected by the Fourteenth Amendment. In Griswold v. Connecticut (1965), the Court struck down a state ban on contraception, grounding the decision in “penumbras” emanating from several incorporated rights, including the First, Third, Fourth, and Fifth Amendments. Later, Roe v. Wade (1973) extended privacy to reproductive choice. Although Roe was overturned in 2022 (Dobbs v. Jackson Women’s Health Organization), the Court did not overrule the incorporation of a privacy right in other contexts. The current status of reproductive liberty varies by state, but the incorporation of due process rights remains the foundation for challenges to state restrictions on abortion, contraception, and intimate conduct.

The Second Amendment After McDonald

The incorporation of the Second Amendment in McDonald v. Chicago (2010) has had far-reaching effects. The Court held that the right to keep and bear arms for self-defense is fundamental and applies to state and local governments. Since then, lower courts have wrestled with the constitutionality of state gun control laws — such as assault weapons bans, magazine capacity limits, and concealed carry restrictions. The Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen further clarified that states must justify firearm regulations by showing they are consistent with the nation’s historical tradition of firearm regulation. This has unleashed a wave of litigation challenging long-standing state gun laws, all made possible by the earlier incorporation ruling.

Digital Privacy and the Fourth Amendment

Modern technology poses new questions for the incorporated Fourth Amendment. In Carpenter v. United States (2018), the Supreme Court held that the government generally needs a warrant to access historical cell phone location data — even though the data was held by a third party (the phone company). The decision relied on the Fourth Amendment as incorporated in Mapp, but applied it to a novel digital context. Similarly, state courts are now confronting issues like police use of automated license plate readers, drones, and geofence warrants. Selective incorporation ensures that states cannot evade constitutional protections simply by innovating technologically; the same “reasonableness” standard applies in both federal and state proceedings.

The Right to Vote and the First Amendment

While not every voting-related right is incorporated under a single amendment, the First Amendment’s protection of political speech and association, incorporated through cases like De Jonge v. Oregon (1937), has been used to strike down state laws that restrict ballot access or campaign finance. For example, in Citizens United v. FEC (2010) — a federal case — the Court applied the incorporated First Amendment to invalidate restrictions on independent political expenditures. The decision applies equally to state laws under the same reasoning. Meanwhile, the Fourteenth Amendment’s Equal Protection Clause (which, unlike the due process clause, applies directly to the states by its own terms) has been the primary vehicle for voting rights cases, but the interplay with incorporated rights (e.g., the right to travel, the right to access the courts) continues to evolve.

Critiques and Limitations of Selective Incorporation

Despite its successes, selective incorporation has drawn criticism. Some argue that the piecemeal approach has led to inconsistent protection: why is the right to a jury trial in civil cases (Seventh Amendment) not fully incorporated, while the right to counsel (Sixth Amendment) is? The Court’s reliance on a “fundamental fairness” test has been accused of being subjective — a reflection of the justices’ own values rather than original constitutional meaning. Originalists like Justice Clarence Thomas advocate for incorporation through the Privileges or Immunities Clause instead, which could yield a different set of rights (including the right to travel and the right to keep and bear arms) and potentially limit others.

Another critique centers on federalism: selective incorporation has centralised power in Washington, reducing the ability of states to experiment with different legal regimes. For instance, states can no longer choose to allow warrantless searches that would be permissible under state law but violate the Fourth Amendment. Proponents of federalism argue that the flexibility of the pre-incorporation era allowed states to tailor criminal procedure to local values. However, the counterargument — forcefully made by the Warren Court — is that fundamental rights should not be subject to local majorities; a right is not really a right if a state can take it away.

Conclusion: The Ongoing Legacy

Selective incorporation has fundamentally reshaped American federalism and the protection of individual rights. By gradually applying the Bill of Rights to the states, the Supreme Court has created a uniform national floor of liberties — a floor that continues to rise as new cases and technologies emerge. Yet the process is not finished. The Court has never ruled on whether the Equal Protection Clause incorporates the first eight amendments (it doesn’t need to, since equal protection applies directly to states), but the boundaries of incorporated rights remain contested: Does the Second Amendment protect a right to carry a firearm in public? Does the Eighth Amendment forbid excessive prison terms as well as excessive fines? Does the First Amendment protect social media posts the same way it protects pamphlets? Each of these questions will be answered through the lens of selective incorporation, building on the foundation laid in Gitlow, Mapp, Gideon, and Miranda.

The doctrine is a testament to the Constitution’s adaptability. Rather than fixing a static set of state restrictions in 1868, the framers of the Fourteenth Amendment crafted a flexible “due process” language that the Court has used to breathe life into the Bill of Rights. As society changes, selective incorporation ensures that the core freedoms of speech, religion, press, assembly, criminal procedure, and privacy remain enforceable against every level of government. That is why the doctrine continues to shape modern civil rights protections — and why it will remain a vital part of American constitutional law for generations to come.

For further reading, see the Oyez Project on Incorporation Doctrine and the Congressional Research Service essay on the Fourteenth Amendment Due Process Clause.