Incorporation Doctrine and the Bill of Rights
For the first century of American history, the Bill of Rights protected Americans only against the federal government. A state could establish an official religion, suppress political speech, conduct unreasonable searches, and deny criminal defendants the right to counsel — and the federal Constitution provided no remedy. This changed through the incorporation doctrine, one of the most important developments in American constitutional law.
The incorporation doctrine holds that the Fourteenth Amendment’s Due Process Clause applies most of the protections of the Bill of Rights to state and local governments. Through this doctrine, the fundamental freedoms that Americans associate with the Constitution — freedom of speech, freedom of religion, the right to bear arms, the right to counsel, and the privilege against self-incrimination — became enforceable against every level of government in the United States.
The Origins of Incorporation
The question of whether the Bill of Rights applied to the states was settled early in American history. In Barron v. Baltimore (1833), the Supreme Court held that the Bill of Rights limited only the federal government. Chief Justice John Marshall explained that the first ten amendments were adopted as restrictions on the newly created federal government, not on the states, and that the Court had no authority to enforce them against state governments.
The ratification of the Fourteenth Amendment in 1868 provided a new textual basis for applying constitutional rights to the states. The amendment provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” The question was whether this Due Process Clause incorporated the Bill of Rights against the states, either wholly or in part.
The Slaughter-House Cases and the Initial Rejection
In the Slaughter-House Cases (1873), the Supreme Court narrowly interpreted the Fourteenth Amendment and rejected the argument that it was intended to transfer the protection of fundamental rights from the states to the federal government. The Court held that the Privileges or Immunities Clause of the Fourteenth Amendment protected only a limited set of national rights, not the rights enumerated in the Bill of Rights. This decision effectively foreclosed what would have been the most natural textual basis for incorporation.
The Court’s decision in the Slaughter-House Cases has been widely criticized by scholars and has never been overruled. As a result, incorporation has proceeded through the Due Process Clause rather than the Privileges or Immunities Clause, a doctrinal path that has shaped the development of constitutional law in significant ways.
Selective Incorporation
The modern incorporation doctrine emerged through a series of cases in the mid-twentieth century. The Court rejected the argument that the Due Process Clause incorporates the entire Bill of Rights wholesale (total incorporation) and instead adopted a case-by-case approach known as selective incorporation. Under this approach, the Court examines each provision of the Bill of Rights and determines whether it is “fundamental to our scheme of ordered liberty” and therefore applicable to the states.
The Fundamental Rights Test
The selective incorporation approach was articulated in Palko v. Connecticut (1937). Justice Benjamin Cardozo explained that some rights are “of the very essence of a scheme of ordered liberty” and should be incorporated, while others are less fundamental. The Court upheld Connecticut’s practice of allowing the state to appeal criminal acquittals on questions of law, holding that the Double Jeopardy Clause was not yet incorporated against the states.
The fundamental rights test allowed the Court to evaluate each claimed right based on its importance to the American legal system. Rights considered “implicit in the concept of ordered liberty” were incorporated; those that were not essential to fundamental fairness were left to the states. This flexible approach permitted the Court to incorporate rights gradually as it developed doctrine and built consensus.
The Incorporation Timeline
The process of selective incorporation unfolded over several decades. The first major step was Gitlow v. New York (1925), where the Court assumed that the First Amendment’s free speech protection applied to the states through the Due Process Clause. Near v. Minnesota (1931) incorporated the freedom of the press. Cantwell v. Connecticut (1940) incorporated the free exercise of religion. Everson v. Board of Education (1947) incorporated the Establishment Clause.
The Warren Court dramatically accelerated the incorporation process. Mapp v. Ohio (1961) incorporated the Fourth Amendment exclusionary rule. Gideon v. Wainwright (1963) incorporated the Sixth Amendment right to counsel in felony cases. *Malloy v. Hogan (1964) incorporated the Fifth Amendment privilege against self-incrimination. *Pointer v. Texas (1965) incorporated the Confrontation Clause. *Klopfer v. North Carolina (1967) incorporated the right to a speedy trial. *Duncan v. Louisiana (1968) incorporated the right to trial by jury in serious criminal cases.
The incorporation of the Second Amendment came much later. In McDonald v. City of Chicago (2010), the Court held that the Second Amendment right to keep and bear arms for self-defense applies to the states through the Due Process Clause. The decision relied heavily on the fact that self-defense is a fundamental right deeply rooted in American history.
What Has Not Been Incorporated
Not every provision of the Bill of Rights has been incorporated against the states. The Third Amendment right against quartering soldiers has never been incorporated, though the question rarely arises. The Fifth Amendment’s grand jury requirement has been held not applicable to the states. The Seventh Amendment right to a civil jury trial has not been incorporated, and states may use different procedures for civil cases.
The Eighth Amendment protection against excessive bail has not been definitively incorporated, though lower courts have applied it. The excessive fines clause was incorporated in Timbs v. Indiana (2019), which held that the protection against excessive fines is a fundamental right applicable to the states.
Total Incorporation vs. Selective Incorporation
Justice Hugo Black was the most prominent advocate of total incorporation. He argued that the Privileges or Immunities Clause of the Fourteenth Amendment was intended to apply the entire Bill of Rights to the states and that the Court should adopt this interpretation rather than engaging in the case-by-case analysis required by selective incorporation. Justice William O. Douglas joined Black in advocating for total incorporation, though Douglas would have incorporated not only the explicit provisions of the Bill of Rights but also certain unenumerated fundamental rights.
The Court rejected total incorporation in Adamson v. California (1947), with Justice Frankfurter’s concurrence arguing that the Due Process Clause requires case-by-case analysis based on “those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.” The selective incorporation approach has prevailed, though the practical difference between total and selective incorporation has diminished as the Court has incorporated virtually all of the significant provisions of the Bill of Rights.
The one notable exception to the near-complete incorporation of the Bill of Rights is the Fifth Amendment’s grand jury requirement. The Court has held that grand jury indictment is not a fundamental right required of the states, and states may use preliminary hearings or information filings to initiate prosecutions. This exception reflects the selective incorporation approach’s focus on whether a particular right is essential to fundamental fairness.
Incorporation and the Ninth Amendment
The Ninth Amendment provides that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The relationship between the Ninth Amendment and the incorporation doctrine raises important questions about the existence of unenumerated rights. If the Bill of Rights is incorporated against the states through the Fourteenth Amendment, does the Ninth Amendment independently protect unenumerated rights from state interference?
Justice Goldberg’s concurrence in Griswold v. Connecticut (1965) argued that the Ninth Amendment supports the recognition of unenumerated fundamental rights, including the right to privacy, and that these rights are protected against the states through the Fourteenth Amendment. The Court has not adopted this interpretation, instead grounding unenumerated rights in the substantive component of the Due Process Clause rather than in the Ninth Amendment.
The Debate Over Incorporation
The incorporation doctrine has been the subject of significant debate. Critics argue that the Court exceeded its proper role by imposing uniform national standards on the states, violating principles of federalism. Justice John Marshall Harlan II was a prominent critic of full incorporation, arguing that the Due Process Clause should be interpreted to protect only those rights that are fundamental in the particular circumstances of each case.
Proponents of incorporation argue that the Fourteenth Amendment was intended to ensure that states respect fundamental constitutional rights and that uniform national standards are necessary to protect individual liberty. The experience of the post-Civil War South, where states systematically denied basic rights to African Americans, demonstrated the need for federal enforcement of fundamental freedoms.
Frequently Asked Questions
What is the difference between total incorporation and selective incorporation? Total incorporation would apply the entire Bill of Rights to the states in a single step. Selective incorporation applies provisions individually as the Court determines that each is fundamental to ordered liberty. The Court rejected total incorporation in favor of selective incorporation.
Why does incorporation proceed through the Due Process Clause rather than the Privileges or Immunities Clause? The Court held in the Slaughter-House Cases (1873) that the Privileges or Immunities Clause protects only a limited set of national rights. This decision has never been overruled, so incorporation has proceeded through the Due Process Clause. Some scholars argue that the Privileges or Immunities Clause would provide a more natural textual basis for incorporation.
Which amendments have been fully incorporated? The First, Second, Fourth, and Sixth Amendments have been fully incorporated. The Fifth Amendment has been partially incorporated — the takings clause, due process clause, double jeopardy protection, and self-incrimination privilege have been incorporated, but the grand jury requirement has not. The Eighth Amendment has been partially incorporated.
Does the incorporation doctrine apply to all levels of state government? Yes. The Due Process Clause of the Fourteenth Amendment applies to all state and local governments, including counties, cities, towns, and school districts. Any entity that exercises governmental authority is subject to the same constitutional limitations as the state itself.
Conclusion
The incorporation doctrine has transformed American constitutional law by extending the protections of the Bill of Rights to every American, regardless of which state they live in. Through this doctrine, the fundamental freedoms that define American liberty — freedom of speech, freedom of religion, the right to bear arms, the right to counsel, and the privilege against self-incrimination — have become the common heritage of all Americans, enforceable against every level of government in the nation.