Incorporation Doctrine

Barron v. Baltimore (1833)

When the Bill of Rights was ratified in 1791, it applied only to the federal government. The states had their own constitutions and their own bills of rights. The Supreme Court confirmed this understanding in Barron v. Baltimore (1833), holding that the Bill of Rights did not limit state governments.

This meant that states could establish religions, restrict speech, or refuse jury trials — as long as their own constitutions allowed it. For much of American history, the primary protector of individual rights was the state, not the federal government.

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.” Fourteenth Amendment, Section 1

A New Basis for Rights

After the Civil War, the Reconstruction Amendments fundamentally changed the relationship between the federal government and the states. The Fourteenth Amendment, ratified in 1868, declared that no state shall "deprive any person of life, liberty, or property, without due process of law."

Litigants soon began arguing that the Due Process Clause incorporated the Bill of Rights — that it made the first ten amendments applicable to the states. The Supreme Court initially rejected this argument. In the Slaughter-House Cases (1873), the Court read the Fourteenth Amendment narrowly, limiting its reach.

But the idea did not die. Over decades, the Court gradually began to apply specific provisions of the Bill of Rights to the states through the Due Process Clause — a process known as incorporation.

Case by Case, Right by Right

The Court adopted a doctrine of selective incorporation. Rather than applying the entire Bill of Rights to the states at once (total incorporation), it proceeded case by case, asking whether a particular right was "fundamental to the American scheme of justice" or "essential to ordered liberty."

The first case was Gitlow v. New York (1925), in which the Court held that the First Amendment's protection of speech and press applied to the states. Over the next several decades, the Court incorporated most of the remaining provisions.

The Unfinished List

Almost all of the Bill of Rights has been incorporated against the states. But not all of it.

The Second Amendment was incorporated in McDonald v. City of Chicago (2010). The Third Amendment — quartering of soldiers — has never been the subject of a Supreme Court incorporation decision, though it is universally assumed to apply.

The Fifth Amendment's grand jury requirement has not been incorporated. The Seventh Amendment's right to a jury trial in civil cases has not been incorporated. And the Eighth Amendment's prohibition on excessive fines was incorporated in Timbs v. Indiana (2019), but excessive bail remains less clearly defined.

For the most part, however, the Bill of Rights now applies to every level of government — federal, state, and local. That is the legacy of the incorporation doctrine.

A National Charter of Rights

Incorporation transformed the Bill of Rights from a limit on federal power into a national charter of individual liberty. Before incorporation, a state could restrict speech, conduct warrantless searches, or deny counsel to criminal defendants. After incorporation, those actions violate the Constitution.

The doctrine is not without critics. Some argue that it gives the Supreme Court too much power to define "fundamental rights" and to impose those definitions on the states. Others argue that incorporation is the fulfillment of the Declaration of Independence's promise of inalienable rights.

Whatever one's view, incorporation is one of the most consequential developments in American constitutional history. It made the promises of the Bill of Rights real for every person, in every state, at every level of government.