Introduction: The Bill of Rights and the States

The Bill of Rights, ratified in 1791, was originally intended only to constrain the powers of the newly created federal government. The First Amendment begins with “Congress shall make no law…” and the rest of the first ten amendments followed a similar pattern—binding the national government but leaving state governments largely free to define individual liberties on their own terms. For more than seven decades, that arrangement stood as a fundamental feature of American federalism.

The ratification of the Fourteenth Amendment in 1868 changed the legal landscape. Its Due Process Clause—prohibiting states from depriving “any person of life, liberty, or property without due process of law”—created a constitutional hook through which the Supreme Court would eventually extend many provisions of the Bill of Rights to the states. This process, known as selective incorporation, has reshaped American law piece by piece, case by case, ensuring that fundamental freedoms are not merely federal promises but national realities.

Understanding the Due Process Clause

The Due Process Clause of the Fourteenth Amendment is deceptively simple: “nor shall any State deprive any person of life, liberty, or property without due process of law.” The same phrase appears in the Fifth Amendment as a restriction on the federal government. But the Fourteenth Amendment’s version created a new constitutional obligation for every state in the union.

Early interpretations of the clause were strikingly narrow. In the Slaughter-House Cases (1873), the Supreme Court held that the Fourteenth Amendment’s Privileges or Immunities Clause—another provision in the same amendment—did not transfer the protection of Bill of Rights guarantees to the states. That decision essentially closed off one path for incorporation and forced litigants to rely on the Due Process Clause instead.

For decades, the Court resisted the argument that the Due Process Clause incorporated any of the specific rights enumerated in the Bill of Rights. Instead, it applied a more open-ended “fundamental fairness” test. In Hurtado v. California (1884), the Court declined to require states to use grand jury indictments (a Fifth Amendment right) because the Constitution did not “explicitly” require it of the states. The result was a patchwork of protections that varied widely depending on where a person lived.

What Is Selective Incorporation?

Selective incorporation is the legal doctrine by which the Supreme Court has applied specific provisions of the Bill of Rights to the states through the Due Process Clause of the Fourteenth Amendment. The word “selective” is key: the Court did not apply the entire Bill of Rights at once. Instead, it considered each right individually, asking whether that right is “implicit in the concept of ordered liberty” and therefore fundamental to the American system of justice.

This approach stands in contrast to “total incorporation,” a theory advanced by Justice Hugo Black. Black argued that the Fourteenth Amendment was intended to apply the entire Bill of Rights to the states—no more, no less. The Court has never adopted total incorporation. Instead, it has gradually, right by right, held that the Due Process Clause protects those freedoms that are “so rooted in the traditions and conscience of our people as to be ranked as fundamental.”

The test for fundamentalness was articulated by Justice Cardozo in Palko v. Connecticut (1937). A right qualifies for incorporation if it is “of the very essence of a scheme of ordered liberty.” If its violation would “permit the state to conduct a prosecution according to procedure that shocks the conscience,” the right must be protected against state action. This flexible standard allowed the Court to incorporate rights one at a time, adapting to new understandings of due process and fairness.

The Relationship: How the Due Process Clause Enables Incorporation

The relationship between selective incorporation and the Due Process Clause is a matter of constitutional interpretation. The Due Process Clause does not itself list any enumerated rights. Instead, the Court has read the clause as protecting certain “fundamental” liberties that are implicit in the concept of due process. When a specific Bill of Rights guarantee is incorporated, the Court is not applying the amendment directly to the states—it is using the Due Process Clause as the vehicle to enforce that right.

For example, the First Amendment says “Congress shall make no law … abridging the freedom of speech.” The Fourteenth Amendment says no state shall deprive a person of liberty without due process. The Court has held that freedom of speech is a component of “liberty” as used in the Due Process Clause. Therefore, the same prohibition that applies to Congress also applies to the states, but through a different clause.

This doctrinal bridge has been built over more than a century. It allows the Court to enforce uniform standards across the country while still respecting the principle that the Bill of Rights was originally drafted as a limit on federal power. The result is a national floor of rights that no state may infringe, even though states retain some latitude to expand protections beyond that floor.

Key Supreme Court Cases in Selective Incorporation

Early Incorporation: First Amendment Rights

The process of selective incorporation began in earnest with First Amendment freedoms. In Gitlow v. New York (1925), the Court held that freedom of speech and of the press—at least in the context of criminal anarchy statutes—were protected from state abridgment through the Due Process Clause. The decision stopped short of incorporating the entire First Amendment, but it opened the door.

In Near v. Minnesota (1931), the Court incorporated the freedom of the press, striking down a state law that allowed prior restraint of newspapers deemed “malicious, scandalous, and defamatory.” The Court reasoned that “the liberty of the press” was among the fundamental rights safeguarded by the Due Process Clause. By the end of the 1930s, the Court had also incorporated the free exercise of religion (Hamilton v. Regents of the University of California, 1934) and the right to peaceably assemble (De Jonge v. Oregon, 1937).

Criminal Procedure Rights

The most dramatic expansion of selective incorporation occurred during the Warren Court era, transforming state criminal justice systems. In Mapp v. Ohio (1961), the Court applied the Fourth Amendment’s exclusionary rule to the states, holding that evidence obtained through an illegal search and seizure could not be used in state criminal trials. The decision overruled Wolf v. Colorado (1949), which had applied the Fourth Amendment itself to the states but declined to require the exclusionary remedy.

In Gideon v. Wainwright (1963), the Court held that the Sixth Amendment’s right to counsel is a fundamental right that applies to state felony trials through the Due Process Clause. Clarence Gideon’s handwritten appeal to the Supreme Court led to a unanimous decision that required states to provide free legal counsel to indigent defendants—a right that had long been recognized in federal courts.

Other landmark incorporations include:

  • Malloy v. Hogan (1964): Applied the Fifth Amendment privilege against self‑incrimination to the states.
  • Pointer v. Texas (1965): Applied the Sixth Amendment’s Confrontation Clause to the states.
  • Parker v. Gladden (1966): Applied the Sixth Amendment’s right to an impartial jury.
  • Klopfer v. North Carolina (1967): Applied the Sixth Amendment’s right to a speedy trial.
  • Duncan v. Louisiana (1968): Applied the Sixth Amendment’s right to jury trial in serious criminal cases.

Recent Incorporation: Second Amendment and Beyond

Selective incorporation is an ongoing process. In McDonald v. Chicago (2010), the Court incorporated the Second Amendment right to keep and bear arms, striking down the city of Chicago’s handgun ban. The plurality opinion relied on the Due Process Clause, finding that the right to self‑defense is fundamental and deeply rooted in the nation’s history and tradition.

More recently, in Timbs v. Indiana (2019), the Court incorporated the Eighth Amendment’s Excessive Fines Clause, holding that it applies to state and local governments. The Court unanimously concluded that the protection against excessive fines is “incorporated” through the Due Process Clause because it is a “fundamental right” essential to ordered liberty.

Significance and Ongoing Debates

Selective incorporation has been one of the most significant developments in American constitutional law. It has nationalized a vast array of individual rights, ensuring that a citizen in California, Texas, or Alabama enjoys the same core protections. Without selective incorporation, state governments could, for example, deny a criminal defendant the right to counsel, conduct warrantless searches, or restrict political speech without constitutional consequence.

The doctrine has also sparked sustained debate. Critics argue that selective incorporation undermines federalism by imposing uniform national standards on diverse states. They point to the fact that the Bill of Rights was never intended to bind state governments, and that the Fourteenth Amendment’s framers may not have intended the radical expansion that followed. Proponents counter that the post‑Civil War amendments were designed to prevent states from infringing on fundamental rights, and that selective incorporation is a faithful reading of the Fourteenth Amendment’s purpose.

Another ongoing issue is the incorporation of rights not yet fully applied. The grand jury requirement of the Fifth Amendment—the one right explicitly referenced in Hurtado v. California—remains unincorporated, and the right to a jury in civil cases (Seventh Amendment) has only been partially applied. Some scholars have argued for the incorporation of the Second Amendment’s right to bear arms beyond mere handgun possession, which is being litigated in current Second Amendment cases.

The standard for incorporation itself has evolved. Early cases used a more flexible “fundamental fairness” test, while later decisions have focused on whether the right is “deeply rooted in this Nation’s history and tradition” (McDonald v. Chicago). This shift has made the incorporation analysis more historical and less moral in tone, but it has not stopped the Court from continuing to apply the Bill of Rights to the states.

For those seeking deeper research, the Cornell Legal Information Institute offers a comprehensive overview of due process doctrine, and the Congressional Research Service publishes periodic reports on incorporation jurisprudence.

Conclusion

The relationship between selective incorporation and the Due Process Clause reflects the Supreme Court’s long‑running effort to balance federalism with the protection of individual rights. By using the Fourteenth Amendment’s guarantee of due process as a gateway, the Court has extended nearly all of the Bill of Rights to state and local governments, creating a national framework for liberty.

This process is not finished. Future Supreme Court cases will continue to test the boundaries of incorporation, asking whether new rights—or more expansive understandings of existing rights—are implicit in the concept of ordered liberty. What remains constant is the Due Process Clause itself, a constitutional provision that continues to serve as the vehicle for ensuring that the protections of the Bill of Rights reach every American, in every state.