The Challenges of Applying Incorporation to State Constitutions

The doctrine of incorporation has fundamentally reshaped the relationship between the U.S. Constitution and state constitutions by making most provisions of the Bill of Rights enforceable against state and local governments through the Fourteenth Amendment. Originating in the early twentieth century, this process has expanded federal protections for individual liberties across all states. Yet applying incorporation to state constitutions remains fraught with legal, structural, and political challenges. The textual differences between state and federal documents, the interpretive autonomy of state courts, resistance from state governments, and evolving Supreme Court precedent all create a complex landscape. Understanding these challenges is essential for anyone navigating state constitutional law, civil rights litigation, or federalism debates.

Historical Development of Incorporation

Incorporation did not happen overnight. The Supreme Court first signaled the possibility in Gitlow v. New York (1925), where it assumed that the First Amendment’s free speech guarantee applies to the states under the Fourteenth Amendment’s Due Process Clause. Over the following decades, the Court selectively incorporated most—though not all—of the Bill of Rights. The process accelerated during the Warren Court era (1953–1969), which incorporated the Fourth, Fifth, Sixth, and Eighth Amendments in landmark decisions such as Mapp v. Ohio (1961), Gideon v. Wainwright (1963), Miranda v. Arizona (1966), and Duncan v. Louisiana (1968). By the 1970s, only a few provisions—such as the Third Amendment’s quartering prohibition, the Fifth Amendment’s grand jury clause, and the Eighth Amendment’s ban on excessive fines—remained unincorporated.

Yet the Court never adopted a “total incorporation” approach, where the entire Bill of Rights would apply wholesale. Instead, it employed selective incorporation, determining on a case-by-case basis whether a right is “fundamental to the American scheme of justice.” This gradual, piecemeal approach created both doctrinal coherence and lingering ambiguity about which state constitutional provisions are subject to federal minimum standards.

Textual and Structural Challenges

Differences Between Federal and State Bills of Rights

State constitutions predate the federal Bill of Rights and often contain unique or more expansive protections. For example, several state constitutions explicitly guarantee a right to education, environmental quality, or privacy. (The Texas Constitution includes a right to bear arms language distinct from the Second Amendment.) When the Supreme Court incorporates a federal right, it establishes a floor—states cannot go below that standard. But state courts frequently interpret similar state provisions to offer broader protections than their federal counterparts.

This creates a challenge: should state courts interpret their own constitutional provisions in lockstep with federal doctrine, or may they independently expand protections? Many states have adopted “independent state grounds” reasoning, allowing their high courts to reach conclusions that diverge from federal interpretation. While independent state grounds are a vital facet of federalism, they can create uneven protection across jurisdictions. A right enforceable in California might not receive the same scope in Alabama, even when both states have textually similar guarantees.

Varying State Constitutions: A Patchwork of Rights

Unlike the uniform federal Bill of Rights, state constitutions vary wildly in length, specificity, and subject matter. The Constitution of Alabama includes more than 900 amendments, addressing everything from local taxation to hunting and fishing rights. This variation complicates the application of a single federal incorporation standard. For instance, the Supreme Court held in McDonald v. City of Chicago (2010) that the Second Amendment applies to the states through the Fourteenth Amendment. But state constitutions contain their own arms provisions, some modeled on the Second Amendment, others with distinct phrasing (e.g., “the right of the people to keep and bear arms in defense of themselves and the state”). Courts must then determine whether the state provision requires a different analysis than the federal right, and whether the state can impose restrictions that would be permissible under federal incorporation doctrine.

Doctrinal and Procedural Challenges

Selective Incorporation vs. Total Incorporation

The Supreme Court’s selective incorporation methodology has been criticized for lacking principled consistency. Justice Hugo Black argued for total incorporation, contending that the Fourteenth Amendment was intended to apply the entire Bill of Rights against the states. The Court rejected that view, instead applying only those rights deemed fundamental. But the criteria for “fundamentalness” have shifted over time, creating uncertainty. For example, the right to keep and bear arms was not considered fundamental until 2010, despite being explicitly listed in the Bill of Rights. This inconsistent timeline means that state constitutional protections once considered adequate may be found insufficient decades later.

Standard of Review Conflicts

Even after a right is incorporated, the standard of review applied by federal courts may conflict with the standards used by state courts under their own constitutions. A federal court reviewing a state law under the incorporated free exercise clause applies the Smith test (neutral laws of general applicability are constitutional), whereas a state court reviewing the same law under a state religious freedom provision might apply strict scrutiny. This mismatch can lead to conflicting outcomes: a law may survive a federal challenge but be struck down under state law. While this is permissible under principles of federalism, it adds complexity for litigants and lawmakers who must navigate dual constitutional regimes.

Political and Practical Challenges

State Sovereignty and Federal Overreach

Many states and localities resist incorporation as an intrusion on their sovereignty. During the era of school desegregation, some Southern states claimed that federal courts overstepped by applying the Equal Protection Clause to state actions. More recently, states have pushed back against incorporation of the Second Amendment, arguing that local gun regulations should not be subject to heightened federal scrutiny. Political resistance can manifest in non-compliance, legislative attempts to limit court jurisdiction, or symbolic “states’ rights” resolutions. This tension is inherent in a federal system where the Supreme Court acts as the final arbiter of constitutional meaning.

Impact on Criminal Procedure

Incorporation has had its most profound impact on state criminal justice systems. Rights such as the Fourth Amendment’s exclusionary rule (Mapp v. Ohio), the Fifth Amendment’s privilege against self-incrimination (Miranda), and the Sixth Amendment’s right to counsel (Gideon) were applied to the states with far-reaching consequences. Yet state courts retain significant authority over criminal procedure through their own constitutions. For instance, some states have elected to suppress evidence in a broader range of circumstances than the Fourth Amendment requires. This creates a dual track for criminal defendants: they can raise federal claims under incorporated rights and independent state claims under more protective state provisions. While beneficial for defendants, it complicates the work of prosecutors and police who must comply with shifting standards across jurisdictions.

Case Studies: Landmark Incorporation Decisions

Gitlow v. New York (1925)

The first major incorporation case, Gitlow v. New York, involved a socialist convicted under a state criminal anarchy law. The Supreme Court assumed that the First Amendment free speech clause applies to the states via the Fourteenth Amendment’s due process clause. However, the Court upheld Gitlow’s conviction because his speech posed a “clear and present danger.” This decision established the principle of incorporation but also illustrated the challenge: the Court reviewed New York’s law under a federal standard, yet allowed a restrictive state law to stand.

McDonald v. City of Chicago (2010)

Nearly a century later, McDonald v. City of Chicago incorporated the Second Amendment right to keep and bear arms. The case arose after a challenge to Chicago’s handgun ban, which the Seventh Circuit had upheld based on prior precedent that the Second Amendment did not apply to the states. In a 5-4 decision, the Supreme Court reversed, finding that the right to self-defense is fundamental and applies everywhere. Justice Samuel Alito’s opinion rejected the idea that states should be free to set their own standards for gun control. This decision reignited debates about federalism and the proper scope of incorporation, especially as lower courts grappled with applying McDonald to state-level restrictions.

Timbs v. Indiana (2019)

In Timbs v. Indiana, the Supreme Court unanimously held that the Eighth Amendment’s excessive fines clause applies to the states. This case demonstrated that incorporation continues to be a live issue. The Court had previously declined to incorporate the clause in Browning-Ferris Industries v. Kelco Disposal, Inc. (1989), but changed course based on a historical and functional analysis. State courts have since been required to review civil forfeiture laws under federal standards, even though many states have their own constitutional protections against excessive fines.

Contemporary Debates and Unresolved Questions

Incorporation After Dobbs

The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization (2022), which overturned Roe v. Wade, raised new questions about incorporation and substantive due process. The Court held that the right to abortion is not fundamental under the Fourteenth Amendment, returning the issue to the states. This ruling effectively “de-incorporated” a right that had been applied nationwide for nearly 50 years. It highlighted an uncomfortable reality: incorporation is not necessarily permanent. If the Supreme Court later determines that a previously incorporated right is not fundamental, states can again regulate that right without federal interference. This possibility hangs over areas like same-sex marriage (Obergefell v. Hodges) and the right to marry as a fundamental right (Loving v. Virginia).

The Third Amendment and Rare State Provisions

Some Bill of Rights provisions have rarely been litigated at the federal level, making their incorporation uncertain. The Third Amendment, which prohibits the quartering of soldiers in homes without consent, has never been formally incorporated by the Supreme Court, though lower courts assume it applies. Similarly, the excessive bail clause of the Eighth Amendment remains technically unincorporated, although the Court addressed it indirectly in United States v. Salerno (1987). State constitutions often contain parallel provisions, and state courts may interpret them differently from any hypothetical federal standard. This lack of clarity provides room for state judicial innovation but also risks confusion.

For attorneys litigating civil rights cases, the interplay between incorporated federal rights and independent state grounds requires careful strategy. A plaintiff might argue both federal and state claims, seeking the most favorable standard. Judges must decide whether to rule on federal grounds or rely on state law to avoid a federal question. For state legislators and governors, the floor set by incorporation means that state laws cannot infringe on fundamental rights as defined by the Supreme Court, but they can offer greater protections. Policymakers should monitor Supreme Court decisions for changes in incorporation doctrine, especially as the Court’s composition shifts.

For example, after McDonald, many states enacted “constitutional carry” laws allowing permitless concealed carry, preempting local restrictions. Conversely, states that wanted stricter gun laws had to work within the federal framework, limiting bans on handguns in sensitive places. Some states have expanded protections beyond federal standards, such as by adding a right to bear arms in all public spaces, not just in self-defense. This patchwork is the direct result of partial, uneven incorporation.

Conclusion: The Enduring Challenge of Balancing Unity and Diversity

Applying incorporation to state constitutions will remain a dynamic and contested aspect of American constitutional law. The doctrine serves a vital purpose: ensuring that fundamental liberties are not sacrificed to local prejudice or majoritarian overreach. Yet it is also a work in progress, with the Supreme Court sometimes expanding and sometimes contracting the scope of rights. The textual diversity of state constitutions, the interpretive independence of state courts, and the ongoing political resistance to federal mandates all contribute to the challenge.

In the end, incorporation must balance two competing values: a baseline of uniform rights guaranteed to every American, and the freedom of states to experiment and provide additional protections as they see fit. Achieving this balance requires careful judicial reasoning, respect for federalism, and a willingness to revisit old assumptions. As legal standards evolve, practitioners and policymakers must stay informed about the latest developments in incorporation doctrine and the unique features of each state’s constitution.

For further reading, see the Cornell Legal Information Institute – Incorporation, the Oyez Project – Incorporation cases, and SCOTUSblog – Dobbs decision. These resources provide deeper analysis of the cases and doctrines discussed above.