IncorporationEdit

In constitutional law, incorporation refers to the process by which the protections in the first ten amendments are applied to state governments through the Fourteenth Amendment's Due Process Clause. This doctrine did not appear all at once; it evolved as the courts tested which liberties are so fundamental that they bound the states as well as the federal government. The result is a carefully selective approach: most, but not all, of the Bill of Rights today apply against state action, with varying degrees of specificity and care for local governance.

From a practical standpoint, incorporation binds state actors to core individual rights while recognizing that states deserve room to tailor laws to their own communities. This has proven valuable in protecting speech, religion, procedural fairness, and the rights of accused persons, even as it raises questions about how far federal judges should go in telling state legislatures how to structure policy. The balance rests on a mix of text, history, and cautious judicial craftsmanship, rather than a single fixed formula. Federalism and Originalism are often cited in these debates, since different readings of the text push courts toward different conclusions about what the states may or may not do.

The basic question—whether the protections of the Bill of Rights bind the states—gained clarity only after the Reconstruction era and the adoption of the Fourteenth Amendment. Barron v. Baltimore laid out the original idea that the Bill of Rights restricted the federal government, not the states. The Fourteenth Amendment, with its Due Process Clause, created a pathway for extending those federal protections to state governments, though early courts adopted a cautious, selective approach rather than a blanket rule. The story of incorporation is, in large part, a story of how the idea of liberty was understood and gradually expanded by the courts, case by case, in light of evolving notions of justice and governance. Barron v. Baltimore · Fourteenth Amendment · Due Process Clause

History and Foundations

Barron v. Baltimore and the original understanding

Barron v. Baltimore (1833) is the canonical starting point for the original separation between national and state power in the protection of liberties. The decision held that the Bill of Rights restricted the federal government, not the states, laying down a framework that would have to be revisited if the nation were to move toward broader national standards for state conduct. This separation would become central to later debates about incorporation. Barron v. Baltimore

The Fourteenth Amendment and due process

The Fourteenth Amendment (1868) aimed to secure equal protection and due process for individuals against state action. Its Due Process Clause would later serve as the vehicle for extending many federal liberties to the states, though the journey would be incremental and contested. The idea of liberty in this era was tied to both formal rights and the broader commitments of a constitutional order, and its interpretation would be shaped by judicial philosophy and political context. Fourteenth Amendment · Due Process Clause

Palko and the selective incorporation approach

In Palko v. Connecticut (1937), the Court articulated a test for deciding when a right should be applied to the states—eventually known as selective incorporation. Rather than applying the entire Bill of Rights to the states at once, the Court would consider whether a particular right was fundamental to a fair process. This approach allowed the Court to expand protections gradually while leaving room for state differences on economic and social policy. Palko v. Connecticut · Selective incorporation

Early cases establishing the modern course

The mid-20th century saw a cascade of cases that began to apply specific rights against the states. Cantwell v. Connecticut (1940) integrated the Free Exercise Clause against the states, and Everson v. Board of Education (1947) helped solidify the application of the Establishment Clause to state action. The school-prayer decisions, including Engel v. Vitale (1962) and Abington School District v. Schempp (1963), further defined the balance between religious liberty and public schooling at the state level. Cantwell v. Connecticut · Everson v. Board of Education · Engel v. Vitale · Abington School District v. Schempp

The modern landscape of incorporation

The reach of the First through the Sixth Amendments

Over the decades, the Court has applied substantial portions of the First Amendment (speech, assembly, religion), the Fourth Amendment (unreasonable searches and seizures), the Fifth and Sixth Amendments (due process, protection against self-incrimination, right to counsel, and related trial rights) to the states. Gideon v. Wainwright (1963) guaranteed the right to counsel in state criminal prosecutions, while Mapp v. Ohio (1961) made exclusion of unlawfully obtained evidence a state obligation. The interplay between these rights and state procedures continues to shape criminal justice and civil procedure. First Amendment · Fourth Amendment · Gideon v. Wainwright · Mapp v. Ohio

The Second Amendment and the arms-bearing right

The Second Amendment’s protection on bearing arms has a notable incorporation milestone with McDonald v. City of Chicago (2010), which held that the Second Amendment applies to state and local governments. This decision underscored the idea that fundamental self-defense rights can extend beyond the federal sphere, while still acknowledging room for reasonable regulation at the local level. Second Amendment · McDonald v. City of Chicago

The Seventh Amendment and civil juries

The Seventh Amendment’s right to a jury trial in civil cases remains a more limited example of incorporation. While many procedural protections have bound the states, the civil jury right has not been incorporated to the same degree as some criminal-right guarantees. This serves as a reminder that incorporation has never been a monotone expansion. Seventh Amendment

The Eighth Amendment and the protection against punishment

The Eighth Amendment’s cruel and unusual punishment standard has also traveled to the states, with recent developments confirming that prohibitions on excessive fines apply to the states (as in Timbs v. Indiana, 2019), reinforcing the principle that state power must be exercised within constitutional bounds. Eighth Amendment · Timbs v. Indiana

The ongoing debates and boundaries

Contemporary debates about incorporation center on how to reconcile the desire for uniform national protections with the federalism model that respects state experimentation and accountability. Critics on one side argue that the Court should stop short of expanding national standards and instead protect liberty through the political process in each state. Critics on the other side argue that certain liberties—speech, due process, and protection from arbitrary state action—are so fundamental that they deserve robust, uniform protection across the nation. The discussion often revisits the tension between original understanding and evolving notions of liberty, with periods of judicial restraint and occasional activism shaping the path forward. Federalism Originalism