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 state and 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.



No person shall ... be deprived of life, liberty, or property, without due process of law ...

Due Process Clause of the Fifth Amendment (1791)

The United States Bill of Rights is the first ten amendments to the United States Constitution.[1] 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.

[N]or shall any State deprive any person of life, liberty, or property, without due process of law ...

Due Process Clause of the Fourteenth Amendment (1868)

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.[2]


The doctrine of incorporation has been traced back to either Chicago, Burlington and Quincy Railroad v. City of Chicago (1897) in which the Supreme Court appeared to require some form of just compensation for property appropriated by state or local authorities (although there was a state statute on the books that provided the same guarantee) or, more commonly, to Gitlow v. New York (1925), in which the Court expressly held that States were bound to protect freedom of speech. Since that time, the Court has steadily incorporated most of the significant provisions of the Bill of Rights.[3] Provisions that the Supreme Court either has refused to incorporate, or whose possible incorporation have not yet been addressed, 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, 489 U.S. 288 (1989).

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.[4] 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).[5] 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.[6] 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.[7][8][9] 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.[7][8][9][10] 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."[10][11] This is why "fundamental rights may not be submitted to a vote; they depend on the outcome of no elections."[10][11] The 14th Amendment has vastly expanded civil rights protections and is cited in more litigation than any other amendment to the U.S. Constitution.[6]

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.[12] 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.[13] 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.[13] 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.[13] 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.[14] 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."[15]

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.

Incorporation under privileges or immunities

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. ...

Privileges or Immunities Clause of the Fourteenth Amendment

Some have suggested that the Privileges or Immunities Clause would be a more appropriate textual basis than the due process clause for incorporation of the Bill of Rights.[16] It is often said that the Slaughter-House Cases "gutted the privileges or immunities clause" and thus prevented its use for applying the Bill of Rights against the states.[17] In his dissent to Adamson v. California, however, Justice Hugo Black pointed out that the Slaughter-House Cases did not directly involve any right enumerated in the Constitution:

[T]he state law under consideration in the Slaughter-House cases was only challenged as one which authorized a monopoly, and the brief for the challenger properly conceded that there was "no direct constitutional provision against a monopoly." The argument did not invoke any specific provision of the Bill of Rights, but urged that the state monopoly statute violated "the natural right of a person" to do business and engage in his trade or vocation.[18]

Thus, in Black's view, the Slaughterhouse Cases should not impede incorporation of the Bill of Rights against the states, via the Privileges or Immunities Clause. Some scholars go even further, and argue that the Slaughterhouse Cases affirmatively supported incorporation of the Bill of Rights against the states.[19] In dicta, Justice Miller's opinion in Slaughterhouse went so far as to acknowledge that the "right to peaceably assemble and petition for redress of grievances ... are rights of the citizen guaranteed by the Federal Constitution," although in context Miller may have only been referring to assemblies for petitioning the federal government.[20]

In the 2010 landmark case McDonald v. Chicago, the Supreme Court declared the Second Amendment is incorporated through the Due Process Clause. However, Justice Thomas, the fifth justice in the majority, criticized substantive due process and declared instead that he reached the same incorporation only through the Privileges or Immunities Clause.[21] No other justice attempted to question his rationale. This is considered by some as a "revival" of the Privileges or Immunities Clause,[22] however as it is a concurring opinion and not the majority opinion in the case, it is not binding precedent in lower courts; it is merely an indication that SCOTUS may be inclined, given the proper question, to reconsider and ultimately reverse the Slaughterhouse Cases.

In the 2019 case Timbs v. Indiana, the Supreme Court, citing McDonald, ruled that the Eighth Amendment's Excessive Fines Clause is incorporated through the Due Process Clause. Justice Thomas did not join this opinion; in a separate opinion concurring in the judgment, he once again declared that he would reach the same incorporation through the Privileges or Immunities Clause. Justice Gorsuch took an in-between position. He joined the opinion of the Court, but wrote a short concurrence acknowledging that the Privileges or Immunities Clause might be the better vehicle for incorporation—but ultimately deciding that nothing in the case itself turned on the question of which clause is the source of the incorporation.[23]

Possible consequences of the Privileges or Immunities approach

In the Timbs decision, one of Justice Thomas's stated reasons for preferring incorporation through the Privileges or Immunities Clause was what he perceived as the Court's failure to consistently or correctly define which rights are "fundamental" under the Due Process Clause. In Thomas' view, incorporation through Privileges or Immunities would allow the Court to exclude rights from incorporation which had erroneously been deemed fundamental in previous decisions.[23]

Another difference between incorporation through Due Process versus Privileges or Immunities is that the text of the Privileges or Immunities Clause refers only to the privileges or immunities of "citizens," while the Due Process Clause protects the due process rights of "any person." It is possible that a switch to Privileges or Immunities incorporation would limit protections of the rights of non-citizens against state governments.[24]

Specific amendments

Many of the provisions of the First Amendment were applied to the States in the 1930s and 1940s, but most of the procedural protections provided to criminal defendants were not enforced against the States until the Warren Court of the 1960s, famous for its concern for the rights of those accused of crimes, brought state standards in line with federal requirements. The following list enumerates, by amendment and individual clause, the Supreme Court cases that have incorporated the rights contained in the Bill of Rights. (The Ninth Amendment is not listed; its wording indicates that it "is not a source of rights as such; it is simply a rule about how to read the Constitution."[25] The Tenth Amendment is also not listed; by its wording, it is a reservation of powers to the states and to the people.)

Amendment I

Guarantee against establishment of religion

Guarantee of free exercise of religion

Guarantee of freedom of speech

Guarantee of freedom of the press

Guarantee of freedom of assembly

Guarantee of the right to petition for redress of grievances

Guarantee of freedom of expressive association

Amendment II

Right to keep and bear arms

Amendment III

Freedom from quartering of soldiers

In 1982, the Second Circuit applied the Third Amendment to the states in Engblom v. Carey. This is a binding authority over the federal courts in Connecticut, New York, and Vermont, but is only a persuasive authority over the other courts in the United States.

The Tenth Circuit has suggested that the right is incorporated because the Bill of Rights explicitly codifies the "fee ownership system developed in English law" through the Third, Fourth, and Fifth Amendments, and the Fourteenth Amendment likewise forbids the states from depriving citizens of their property without due process of law. See United States v. Nichols, 841 F.2d 1485, 1510 n.1 (10th Cir. 1988).

Amendment IV

Unreasonable search and seizure

Warrant requirements

Amendment V

Right to indictment by a grand jury

Protection against double jeopardy

Constitutional privilege against self-incrimination

Right to Due Process of Law

Protection against taking of private property without just compensation

Amendment VI

Right to a speedy trial

Right to a public trial

Right to trial by impartial jury

Right to a jury selected from residents of the state and district where the crime occurred

Right to notice of accusations

Right to confront adverse witnesses

Right to compulsory process (subpoenas) to obtain witness testimony

Right to assistance of counsel

Amendment VII

Right to jury trial in civil cases

Re-Examination Clause

Amendment VIII

Protection against excessive bail

Protection against excessive fines

Protection against cruel and unusual punishments

Reverse incorporation

See also: Schneider v. Rusk, Frontiero v. Richardson, Weinberger v. Wiesenfeld, Califano v. Goldfarb, and United States v. Windsor

A similar legal doctrine to incorporation is that of reverse incorporation. Whereas incorporation applies the Bill of Rights to the states through the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment, equality before the law is required under the laws of the federal government by the Due Process Clause of the Fifth Amendment.[41] For example, in Bolling v. Sharpe, 347 U.S. 497 (1954), which was a companion case to Brown v. Board of Education, the schools of the District of Columbia were desegregated even though Washington is a federal enclave. Likewise, in Adarand Constructors, Inc. v. Peña 515 U.S. 200 (1995), an affirmative action program by the federal government was subjected to strict scrutiny based on equal protection.[citation needed]


  1. ^ "The Charters of Freedom: The Bill of Rights". Washington D.C.: National Archives and Records Administration. Retrieved October 4, 2015.
  2. ^ Chu, Vivian (September 21, 2009). "The Second Amendment and Incorporation: An Overview of Recent Appellate Cases" (PDF). Congressional Research Service. Archived from the original (PDF) on October 6, 2022. Retrieved October 13, 2017.
  3. ^ a b 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 ISBN 9781433196317; Constitutional Rights Foundation discussion, giving summary, extensive WWW links and timeline; Article;BYU Law Review Article
  4. ^ Congressional Globe: Debates and Proceedings, 1833–1873
  5. ^ Adamson v. California, 332 U.S. 46, 92-118 (1947)
  6. ^ a b "Primary Documents in American History", Library of Congress
  7. ^ a b Jeffrey Jowell; Jonathan Cooper (2002). Understanding Human Rights Principles. Oxford and Portland, Oregon: Hart Publishing. p. 180. ISBN 9781847313157. Retrieved March 16, 2017.
  8. ^ a b Loveland, Ian (2002). "Chapter 18 - Human Rights I: Traditional Perspectives". Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction (Seventh ed.). London: Oxford University Press. p. 559. ISBN 9780198709039. Retrieved March 16, 2017.
  9. ^ a b Jayawickrama, Nihal (2002). The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence. Cambridge: Cambridge University Press. p. 98. ISBN 9780521780421. Retrieved March 16, 2017.
  10. ^ a b c West Virginia State Board of Education v. Barnette, 319 U.S. 624, Majority Opinion, item 3 (US 1943) ("The very purpose of a 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. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.").
  11. ^ a b Obergefell v. Hodges, No. 14-556, slip op. Archived 2019-10-02 at the Wayback Machine at 24 (U.S. June 26, 2015).
  12. ^ Steffen W. Schmidt, Mack C. Shelley, Barbara A. Bardes: American Government and Politics Today, Page 71. Thomson Wadsworth, 2004.
  13. ^ a b c Amar, Akhil Reed: The Bill of Rights: Creation and Reconstruction , Page 234. Yale University Press, 1998
  14. ^ Curtis, Michael Kent (1994) [1986]. No State Shall Abridge (Second printing in paperback ed.). Duke University Press. pp. 5, 202. ISBN 0-8223-0599-2.
  15. ^ Curtis, Michael Kent (1994) [1986]. No State Shall Abridge (Second printing in paperback ed.). Duke University Press. p. 202. ISBN 0-8223-0599-2.
  16. ^ See Doherty, Brian. "Killing Slaughterhouse: Understanding the controversial 1873 decision at the center of the Supreme Court's upcoming gun rights fight," Reason Magazine Retrieved 2010-01-26.
  17. ^ See Pilon, Roger. "Lawless Judges: Refocusing the Issue for Conservatives," Georgetown Journal of Law and Public Policy Volume II, page 21 (2000).
  18. ^ Adamson v. California, 332 U.S. 46 (1947) (Black, J., dissenting).
  19. ^ See Wildenthal, Bryan. "The Lost Compromise: Reassessing the Early Understanding in Court and Congress on Incorporation of the Bill of Rights in the Fourteenth Amendment". Ohio State Law Journal, Vol. 61 (2000).
  20. ^ Slaughter-House Cases, 83 U.S. 36 (1873).
  21. ^ McDonald v. City of Chi., 561 U.S. 742, 806 (2010) (Thomas, J., dissenting)
  22. ^ Privileges or Immunities Clause alive again
  23. ^ a b Timbs v. Indiana, 586 U.S. Argued November 28, 2018—Decided February 20, 2019
  24. ^ William J. Aceves (September 9, 2019). "A Distinction with a Difference: Rights, Privileges, and the Fourteenth Amendment". Tex. L. Rev. 98.
  25. ^ Laurence H. Tribe (1998). American Constitutional Law (2nd ed.). p. 776 n. 14.
  26. ^ Justice Thomas, in a concurring opinion in Elk Grove Unified School District v. Newdow, expressed his view that Everson was wrongly decided and that incorporation of the Establishment Clause is not justified under the Constitution. See Nussbaum, Martha Craven (2008). Liberty of conscience: in defense of America's tradition of religious equality. Basic Books. pp. 105 et seq. and Chapter 4. ISBN 978-0-465-05164-9. Richard F. Duncan (2007). "JUSTICE THOMAS AND PARTIAL INCORPORATION OF THE ESTABLISHMENT CLAUSE: HEREIN OF STRUCTURAL LIMITATIONS, LIBERTY INTERESTS, AND TAKING INCORPORATION SERIOUSLY" (PDF). Regent University Law Review. 20: 37–56. Archived from the original (PDF) on January 15, 2013.
  27. ^ a b "Gitlow v. New York, 268 U.S. 652 (1925) at 268". Justia US Supreme Court Center. June 8, 1925. Retrieved August 2, 2020. For present purposes, we may and do assume that freedom of speech and of the press which are protected by the First Amendment from abridgment by Congress are among the fundamental personal rights and "liberties" protected by the due process clause of the Fourteenth Amendment from impairment by the States.
  28. ^ Gary Hartman; Roy M. Mersky; Cindy L. Tate (2004). "Landmark Supreme Court Cases: "Edwards v. South Carolina."". New York: Facts On File, Inc., 2004. American History Online. Retrieved August 15, 2013.
  29. ^ "Pearson Prentice Hall: Supreme Court Cases - Edwards v. South Carolina, 1963". Pearson Education, Inc. Pearson Education, Inc. Retrieved August 15, 2013.
  30. ^ Vance, Laurence M. (May 9, 2012). "Does the First Amendment Protect the Freedom of Association? The Future of Freedom Foundation". The Future of Freedom Foundation. Archived from the original on June 17, 2023.
  31. ^ Akhil Reed Amar and Renee Lettow Lerner, "Fifth Amendment First Principles: The Self- Incrimination Clause", Michigan Law Review 93 (1995): 857, accessed February 15, 2015.
  32. ^ Robert L. Cord (1975). "Neo-Incorporation: The Burger Court and the Due Process Clause of the Fourteenth Amendment". Fordham Law Review. 44 (2): 215–230. Retrieved February 13, 2015.
  33. ^ Bugh, Gary (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. p. 97. ISBN 9781433196317.
  34. ^ a b c d "Bill of Rights Institute: Incorporation". Bill of Rights Center. Archived from the original on October 12, 2013. Retrieved October 11, 2013.
  35. ^ de Vogue, Ariana (April 20, 2020). "Supreme Court says unanimous jury verdicts required in state criminal trials for serious offenses". CNN. Retrieved April 20, 2020.
  36. ^ a b "The Constitution of the United States of America: Analysis, and Interpretation - 1992 Edition --> Amendments to the Constitution --> Seventh Amendment - Civil Trials". U.S. Government Printing Office. U.S. Government Printing Office. 1992. p. 1453. Retrieved July 4, 2013. The Amendment governs only courts which sit under the authority of the United States, including courts in the territories and the District of Columbia, and does not apply generally to state courts.
  37. ^ Walker, 92 U.S. 90, at 92.
  38. ^ Justices, 76 U.S. 274, at, 278.
  39. ^ de Vogue, Ariane; Tatum, Sophie (February 20, 2019). "Now we know what Ruth Bader Ginsburg was doing". CNN. Archived from the original on February 28, 2019. Retrieved February 20, 2019.
  40. ^ Liptak, Adam (February 20, 2019). "Supreme Court Puts Limits on Police Power to Seize Private Property". The New York Times. Archived from the original on April 10, 2020. Retrieved February 20, 2019.
  41. ^ Columbia Law Review, May 2004

Further reading