In United States constitutional law, incorporation is the doctrine by which portions of the Bill of Rights have been made applicable to the states. When the Bill of Rights was ratified, the courts held that its protections extended only to the actions of the federal government and that the Bill of Rights did not place limitations on the authority of the states and their local governments. However, the post–Civil War era, beginning in 1865 with the Thirteenth Amendment, which declared the abolition of slavery, gave rise to the incorporation of other amendments, applying more rights to the states and people over time. Gradually, various portions of the Bill of Rights have been held to be applicable to state and local governments by incorporation via the Due Process Clause of the Fourteenth Amendment of 1868.
Prior to the ratification of the Fourteenth Amendment and the development of the incorporation doctrine, the Supreme Court in 1833 held in Barron v. Baltimore that the Bill of Rights applied only to the federal, but not any state, governments. Even years after the ratification of the Fourteenth Amendment, the Supreme Court in United States v. Cruikshank (1876) still held that the First and Second Amendment did not apply to state governments. However, beginning in the 1920s, a series of Supreme Court decisions interpreted the Fourteenth Amendment to "incorporate" most portions of the Bill of Rights, making these portions, for the first time, enforceable against the state governments.
History Background
The United States Bill of Rights is the first ten amendments to the United States Constitution. Proposed following the oftentimes bitter 1787–88 battle over ratification of the United States Constitution, and crafted to address the objections raised by Anti-Federalists, the Bill of Rights amendments add to the Constitution specific guarantees of personal freedoms and rights, clear limitations on the government's power in judicial and other proceedings, and explicit declarations that all powers not specifically delegated to Congress by the Constitution are reserved for the states or the people. The concepts enumerated in these amendments are built upon those found in several earlier documents, including the Virginia Declaration of Rights and the English Bill of Rights 1689, along with earlier documents such as Magna Carta (1215). Although James Madison's proposed amendments included a provision to extend the protection of some of the Bill of Rights to the states, the amendments that were finally submitted for ratification applied only to the federal government.
In the 1833 case of Barron v. Baltimore, the Supreme Court of the United States held that the Bill of Rights did not apply to state governments; such protections were instead provided by the constitutions of each state. After the Civil War, Congress and the states ratified the Fourteenth Amendment, which included the Due Process Clause and the Privileges or Immunities Clause. While the Fifth Amendment had included a due process clause, the due process clause of the Fourteenth Amendment crucially differed from the Fifth Amendment in that it explicitly applied to the states. The Privileges or Immunities Clause also explicitly applied to the states, unlike the Privileges and Immunities Clause of Article IV of the Constitution. In the Slaughter-House Cases (1873), the Supreme Court ruled that the Privileges or Immunities Clause was not designed to protect individuals from the actions of state governments. In Twining v. New Jersey (1908), the Supreme Court acknowledged that the Due Process Clause might incorporate some of the Bill of Rights, but continued to reject any incorporation under the Privileges or Immunities Clause.
Incorporation The doctrine of incorporation has been traced back to either Chicago, Burlington & Quincy Railroad Co. v. City of Chicago (1897) or, more commonly, to Gitlow v. New York (1925). In Chicago Railroad, the Supreme Court appeared to require some form of just compensation for property appropriated by state or local authorities, which was also provided by a state statute. "Although the Court did not speak explicitly of the Fourteenth Amendment incorporating the takings clause, that was the practical effect of the decision." In Gitlow, the Court expressly incorporated the First Amendment against the states, and expressly held that States were bound to protect freedom of speech. The role of the Fourteenth Amendment in protecting the rights in the Bill of Rights was raised in some earlier cases, in which litigants argued that some of those rights were "fundamental and essential rights," but those challengers did not expressly argue that the Fourteenth Amendment incorporated them against the states.
Since the early twentieth century, the Court has steadily incorporated most of the significant provisions of the Bill of Rights.See, e.g., Gary Bugh (2023). Incorporation of the Bill of Rights: An Accounting of the Supreme Court's Extension of Federal Civil Liberties to the States. New York: Peter Lang ; Constitutional Rights Foundation discussion, giving summary, extensive WWW links and timeline; Encyclopedia.com Article Provisions that the Supreme Court has not specifically incorporated include the Fifth Amendment right to an indictment by a grand jury, and the Seventh Amendment right to a jury trial in civil lawsuits.
Incorporation applies both procedurally and substantively to the guarantees of the states. Thus, procedurally, only a jury can convict a defendant of a serious crime, since the Sixth Amendment jury-trial right has been incorporated against the states; substantively, for example, states must recognize the First Amendment prohibition against a state-established religion, regardless of whether state laws and constitutions offer such a prohibition. The Supreme Court declined to apply new procedural constitutional rights retroactively against the states in criminal cases in Teague v. Lane, .
Rep. John Bingham, the principal framer of the Fourteenth Amendment, advocated that the Fourteenth applied the first eight Amendments of the Bill of Rights to the States.Congressional Globe: Debates and Proceedings, 1833–1873 The U.S. Supreme Court subsequently declined to interpret it that way, despite the dissenting argument in the 1947 case of Adamson v. California by Supreme Court justice Hugo Black that the framers' intent should control the Court's interpretation of the Fourteenth Amendment (he included a lengthy appendix that quoted extensively from Bingham's congressional testimony).Adamson v. California, 332 U.S. 46, 92-118 (1947) Although the Adamson Court declined to adopt Black's interpretation, the Court during the following twenty-five years employed a doctrine of selective incorporation that succeeded in extending against the states almost all of the protections in the Bill of Rights, as well as other, unenumerated rights."Primary Documents in American History", Library of Congress The Bill of Rights thus imposes legal limits on the powers of governments and acts as an anti-majoritarian/minoritarian safeguard by providing deeply entrenched legal protection for various civil liberties and fundamental rights. The Supreme Court for example concluded in the West Virginia State Board of Education v. Barnette (1943) case that the founders intended the Bill of Rights to put some rights out of reach from majorities, ensuring that some liberties would endure beyond political majorities. As the Court noted, the idea of the Bill of Rights "was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts." This is why "fundamental rights may not be submitted to a vote; they depend on the outcome of no elections."Obergefell v. Hodges, No. 14-556, slip op. at 24 (U.S. June 26, 2015). The 14th Amendment has vastly expanded civil rights protections and is cited in more litigation than any other amendment to the U.S. Constitution.
Selective versus total incorporation In the 1940s and 1960s the Supreme Court gradually issued a series of decisions incorporating several of the specific rights from the Bill of Rights, so as to be binding upon the States.Steffen W. Schmidt, Mack C. Shelley, Barbara A. Bardes: American Government and Politics Today, Page 71. Thomson Wadsworth, 2004. A dissenting school of thought championed by Justices Hugo Black and William O. Douglas supported that incorporation of specific rights, but urged incorporation of all specific rights instead of just some of them. Black was for so-called mechanical incorporation, or total incorporation, of Amendments 1 through 8 of the Bill of Rights.Amar, Akhil Reed: The Bill of Rights: Creation and Reconstruction , Page 234. Yale University Press, 1998 Black felt that the Fourteenth Amendment required the States to respect all of the enumerated rights set forth in the first eight amendments, but he did not wish to see the doctrine expanded to include other, unenumerated "fundamental rights" that might be based on the Ninth Amendment. The Tenth Amendment was excluded from total incorporation as well, due to it already being patently concerned with the power of the states. Black felt that his formulation eliminated any arbitrariness or caprice in deciding what the Fourteenth Amendment ought to protect, by sticking to words already found in the Constitution. Although Black was willing to invalidate federal statutes on federalism grounds, he was not inclined to read any of the first eight amendments as states' rights provisions as opposed to individual rights provisions. Justice Black felt that the Fourteenth Amendment was designed to apply the first eight amendments from the Bill of Rights to the states, as he expressed in his dissenting opinion in Adamson v. California. This view was again expressed by Black in his concurrence in Duncan v. Louisiana citing the Fourteenth Amendment's Privileges or Immunities Clause: "'No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States' seem to me an eminently reasonable way of expressing the idea that henceforth the Bill of Rights shall apply to the States."
Due process interpretation Justice Felix Frankfurter, however, felt that the incorporation process ought to be incremental, and that the federal courts should only apply those sections of the Bill of Rights whose abridgment would "shock the conscience," as he put it in Rochin v. California (1952). Such a selective incorporation approach followed that of Justice Moody, who wrote in Twining v. New Jersey (1908) that "It is possible that some of the personal rights safeguarded by the first eight Amendments against National action may also be safeguarded against state action, because a denial of them would be a denial of due process of law. If this is so, it is not because those rights are enumerated in the first eight Amendments, but because they are of such a nature that they are included in the conception of due process of law." The due process approach thus considers a right to be incorporated not because it was listed in the Bill of Rights, but only because it is required by the definition of due process, which may change over time. For example, Moody's decision in Twining stated that the 5th Amendment right against self-incrimination was not inherent in a conception of due process and so did not apply to states, but was overruled in Malloy v. Hogan (1964). Similarly, Justice Cardozo stated in Palko v. Connecticut (1937) that the right against double jeopardy was not inherent to due process and so does not apply to the states, but that was overruled in Benton v. Maryland (1969). Frankfurter's incrementalist approach did carry the day, but the end result is very nearly what Justice Black advocated, with the exceptions noted below.