14th Amendment Incorporation and the Bill of Rights

Incorporation under the 14th Amendment is the doctrine the Supreme Court uses to apply protections from the Bill of Rights to state and local governments. It works through the 14th Amendment’s Due Process Clause, which forbids any state from depriving a person of “life, liberty, or property, without due process of law.”¹ The Court has read “liberty” in that clause to include specific rights from the first ten amendments, and one by one, over nearly a century of cases, it has made most of those rights enforceable against governors, city councils, police departments, and state courts.

Why the Bill of Rights Originally Did Not Apply to States

For most of the country’s early history, the first ten amendments restrained only the federal government. The Supreme Court said so directly in Barron v. Baltimore (1833), holding unanimously that the Bill of Rights did not bind the states. Chief Justice John Marshall reasoned that the Constitution was “ordained and established by the people of the United States for themselves, for their own government, and not for the government of individual States.”² A city could take your property without paying for it, and the Fifth Amendment’s just-compensation guarantee simply did not reach the case.

The scope of your rights therefore depended on where you lived. Some state constitutions offered strong protections; others offered little. That framework held until after the Civil War. Congress proposed the 14th Amendment in 1866, and it was ratified in 1868. Section 1 forbade any state from denying due process of law to any person, and that language is the constitutional hook on which the entire incorporation doctrine hangs.¹

Why the Due Process Clause Does the Work

Two clauses in Section 1 could plausibly have applied federal rights to the states. The Privileges or Immunities Clause seemed the more natural fit, and there is historical evidence that many framers intended it to serve exactly that function. But in the Slaughter-House Cases (1873), the Court read the clause narrowly, distinguishing the privileges of national citizenship from the broader rights of state citizenship and treating the amendment as leaving the latter untouched. The interpretation “reduced the Privileges or Immunities Clause to a superfluous reiteration of a prohibition already operative against the states.”³

With that route closed, lawyers turned to the Due Process Clause. The Court gradually interpreted “liberty” in that clause to encompass specific rights found in the Bill of Rights. When a right is deemed fundamental to the American system of justice, it is “incorporated” into the 14th Amendment and becomes enforceable against every level of government. That is still the controlling framework, though it is not without dissent. Justice Clarence Thomas argued in his 2010 concurrence in McDonald v. City of Chicago that the Privileges or Immunities Clause was the more historically accurate vehicle and that Slaughter-House should be overruled.⁴ Justice Neil Gorsuch echoed the point in Timbs v. Indiana in 2019.⁵ No majority has switched vehicles.

Selective Incorporation, Not All at Once

The Court has never applied the Bill of Rights to the states as a single package. Justice Hugo Black pushed for that approach in Adamson v. California (1947), arguing that Section 1 of the 14th Amendment “was thought by those responsible for its submission to the people . . . sufficiently explicit to guarantee that thereafter no state could deprive its citizens of the privileges and protections of the Bill of Rights.”⁶ The majority rejected that view.

What the Court adopted instead is called selective incorporation. Each right is evaluated on its own, and the question is whether that right is fundamental. The test has been phrased in several ways over time: whether a right is essential to “ordered liberty” (Palko v. Connecticut, 1937), whether it is “fundamental to the American scheme of justice” (Duncan v. Louisiana, 1968), whether it is “basic in our system of jurisprudence,” or whether it is “essential to a fair trial.”

The practical consequence is that incorporation only happens when a case forces the issue. A state law has to harm someone, that person has to litigate the point up through the courts, and the Supreme Court has to be willing to take the case. This is why incorporation unfolded over nearly a hundred years rather than in a single ruling.

Which Rights Are Incorporated

The great majority of Bill of Rights protections now apply to state and local governments. The process started in 1925 and has continued into recent years, with the biggest wave coming during the Warren Court era of the 1960s. The main incorporation decisions:

Free speech, First Amendment: Gitlow v. New York (1925). The Court assumed “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.”⁷
Freedom of the press, First Amendment: Near v. Minnesota (1931).
Freedom of assembly, First Amendment: DeJonge v. Oregon (1937).
Free exercise of religion, First Amendment: Cantwell v. Connecticut (1940).
Establishment Clause, First Amendment: Everson v. Board of Education (1947).
Unreasonable search and seizure, Fourth Amendment: Wolf v. Colorado (1949), with the exclusionary rule added in Mapp v. Ohio (1961).
Right to counsel, Sixth Amendment: Gideon v. Wainwright (1963).
Protection against self-incrimination, Fifth Amendment: Miranda v. Arizona (1966).
Right to a jury trial in criminal cases, Sixth Amendment: Duncan v. Louisiana (1968).
Protection against double jeopardy, Fifth Amendment: Benton v. Maryland (1969).
Right to keep and bear arms, Second Amendment: McDonald v. City of Chicago (2010).⁴
Protection against excessive fines, Eighth Amendment: Timbs v. Indiana (2019), which held that the clause is “fundamental to our scheme of ordered liberty.”⁵
Unanimous jury verdict in criminal cases, Sixth Amendment: Ramos v. Louisiana (2020).⁸

Other protections have also been incorporated through separate cases, including the right to a speedy trial, the right to confront witnesses, and the Eighth Amendment’s ban on cruel and unusual punishment. Once a right is incorporated, the Court has said there is “no daylight between the federal and state conduct it prohibits or requires.”⁵ The federal standard becomes the floor.

Which Rights Are Not Incorporated

A handful of Bill of Rights provisions still do not formally bind state governments. Knowing what falls outside the doctrine matters, because it is easy to assume every constitutional protection reaches every level of government.

Grand jury indictment, Fifth Amendment. The requirement that serious federal crimes proceed only after a grand jury indictment has never been incorporated. The Court declined to do so in Hurtado v. California (1884), holding that states could use other charging procedures such as a prosecutor’s information. Roughly half of states require grand jury indictments for felonies anyway; the rest allow prosecutors to charge directly.
Civil jury trial, Seventh Amendment. The right to a jury trial in civil cases involving more than $20 has never been applied to the states. Most states provide their own civil jury rights, but the federal guarantee does not.
Quartering of soldiers, Third Amendment. The Supreme Court has never directly addressed this question. A federal appeals court held in Engblom v. Carey (1982) that the Third Amendment applies to the states, but that is a lower-court ruling with limited reach.⁹
Excessive bail, Eighth Amendment. A footnote in McDonald v. City of Chicago listed the Excessive Bail Clause among incorporated protections, but no majority opinion has squarely held as much.

For most people, the grand jury gap is the only one likely to matter, and even there, state constitutions and statutes usually supply their own procedural safeguards.

How Incorporated Rights Get Enforced Against States and Localities

Incorporation would be theoretical without a way to sue state and local officials who violate those rights. That mechanism is 42 U.S.C. § 1983, a Reconstruction-era civil rights statute. It lets anyone whose constitutional rights are violated “under color of” state law bring a federal lawsuit for damages or court orders against the responsible officials.¹⁰ A police officer who conducts an unconstitutional search, a school board that censors protected speech, a city that imposes excessive fines: all of these can be challenged through Section 1983.

Local governments themselves can also be sued, but only when the violation traces back to an official policy, regulation, or established custom. The Supreme Court drew that line in Monell v. Department of Social Services (1978), which held that a city or county is not liable under Section 1983 simply because one of its employees violated someone’s rights. The violation must stem from a deliberate policy choice or a practice widespread enough to carry the force of policy.¹¹ That distinction is where a large share of civil rights claims against local governments succeed or fail.

1
Constitution Annotated. Constitution of the United States – Fourteenth Amendment
2
Justia. Barron v. Mayor and City Council of Baltimore, 32 U.S. 243 (1833)
3
Constitution Annotated. Amdt14.S1.2.1 Privileges or Immunities of Citizens and the Slaughter-House Cases
4
Justia. McDonald v. City of Chicago, 561 U.S. 742 (2010)
5
Justia. Timbs v. Indiana, 586 U.S. ___ (2019)
6
Constitution Annotated. Amdt14.S1.4.2 Early Doctrine on Incorporation of the Bill of Rights
7
Justia. Gitlow v. New York, 268 U.S. 652 (1925)
8
Oyez. Ramos v. Louisiana
9
Constitution Annotated. Amdt3.3 Government Intrusion and Third Amendment
10
Office of the Law Revision Counsel. 42 USC 1983 – Civil Action for Deprivation of Rights
11
Justia. Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978)