Incorporation Constitutional LawEdit
Incorporation constitutional law refers to the body of doctrine by which the rights guaranteed in the Bill of Rights are made applicable to the states through the Fourteenth Amendment. This process has shaped American liberty by binding state and local governments to nationally recognized limits, even as it raises perennial questions about federal versus state power and the proper scope of judicially created rights. Supporters of a restrained federal framework emphasize that incorporation should proceed cautiously, reinforcing fundamental protections while preserving space for local governance and democratic accountability.
The modern incorporation project did not begin in earnest with the Fourteenth Amendment alone. Early decisions treated the Bill of Rights as restraints on the federal government, not the states. That changed as courts interpreted the Due Process Clause of the Fourteenth Amendment as a vehicle to safeguard liberty against state action. In a carefully calibrated, incremental fashion, the Supreme Court has applied most, but not all, provisions of the Bill of Rights to the states through a process known as selective incorporation. This approach blends respect for the text of the amendments with a pragmatic look at which rights are essential to ordered liberty when state action is at issue. See the Fourteenth Amendment and the Privileges or Immunities Clause for the competing constitutional routes; some scholars argue the latter should bear more of the load in protecting rights against state power.
The doctrine of incorporation
Barron v. Baltimore (1833) held that the Bill of Rights restricted the federal government, not the states, setting the stage for later reconsideration under the Fourteenth Amendment. The transformation began after the Civil War as the Fourteenth Amendment entered the constitutional landscape, especially its Due Process Clause as a vehicle to apply federal rights to state governments. Barron v. Baltimore
The emergence of selective incorporation started with cases such as Gitlow v. New York (1925), which held that freedom of speech and of the press were among the liberties protected from state action through due process. Over time, other First Amendment guarantees and a broad array of rights were extended to the states on a case-by-case basis. Gitlow v. New York
The doctrine grew through a series of decisions evaluating whether a given right was fundamental to a concept of liberty that the states must respect. The Court also considered whether a right was deeply rooted in this nation's history and tradition. As a result, the scope of incorporation expanded, while some provisions remained non-incorporated or were limited in application. See the discussion of fundamental liberties and due process. Due Process Clause Fundamental rights
The Privileges or Immunities Clause of the Fourteenth Amendment has been a central topic of debate within incorporation discourse. Some scholars and jurists argue that this clause could provide a more direct route for protecting rights against state interference, while the Court has largely pursued incorporation through the Due Process Clause. Privileges or Immunities Clause
Two practical consequences of incorporation are its effect on state autonomy and its impact on policy experimentation. By binding states to federal constitutional standards, incorporation can level the playing field for individual rights across states, but it can also constrain local political choices and slow down experimentation that might reflect community values. See Federalism for a deeper look at this tension.
Key rights and landmark cases
First Amendment protections—speech, press, assembly, and religion—have been applied to the states through the Fourteenth Amendment in a long line of precedents. These decisions are often framed as defenses of liberty against government overreach at any level. Key cases include Gitlow v. New York, Cantwell v. Connecticut, Engel v. Vitale, and Abington School District v. Schempp.
The Second Amendment right to keep and bear arms has been incorporated to apply to the states, notably in McDonald v. City of Chicago.
Fourth Amendment protections against unreasonable searches and seizures have been incorporated, safeguarding individual privacy against state intrusions. See Fourth Amendment.
Criminal procedure rights, including the right to counsel (Gideon v. Wainwright) and protection against compelled self-incrimination, have been incorporated in various degrees, shaping state criminal justice practices. See Gideon v. Wainwright and Fifth Amendment.
The Eighth Amendment’s limits on cruel and unusual punishment and excess fines and bail have also been extended to the states in important respects, reinforcing limits on state punishment practices. See Eighth Amendment.
Not all provisions have been incorporated. The Seventh Amendment’s right to a jury trial in civil cases, and the Third Amendment’s protection against quartering soldiers, remain less fully incorporated, reflecting ongoing debates about the balance between national guarantees and state policy autonomy. See Seventh Amendment and Third Amendment.
The scope and limits
The central theoretical question is what counts as a “fundamental right” worthy of incorporation. The Due Process Clause provides a vehicle for this evaluation, but the concept of liberty is debated; some insist on strict textual interpretation, while others emphasize evolving constitutional meaning. See Due Process Clause and Fundamental rights.
Alternatives to the current route include revived arguments under the Privileges or Immunities Clause or more robust reliance on state sovereignty and the traditional constitutional text. See Privileges or Immunities Clause and Federalism.
Critics from the left argue that incorporation is essential to protect civil liberties across all states, creating uniform standards and preventing a race to the bottom. Critics from the right worry that overbroad incorporation erodes state sovereignty, injects the federal government into local policy choices, and creates opportunities for judicial activism to redefine rights beyond their original understandings. Proponents of a restrained approach contend that the best defense of liberty includes preserving local control and democratic accountability, and that federal protection should not substitute for state-level political processes.
Debates about woke critiques of incorporation often revolve around whether courts should recognize and protect unenumerated rights or simply enforce enumerated rights as originally understood. From a more conservative vantage, the concern is that unmooring rights from textual anchors risks judicial overreach and destabilizes the constitutional balance between national standards and local self-government. Supporters respond that protecting core liberties requires a flexible constitutional framework; skeptics counter that that flexibility comes at the expense of democratic legitimacy. The historical record shows a steady, largely incremental path rather than abrupt revolutions in the scope of incorporation.