The Bill of Rights originally limited the power of the federal government, not the states. After the Civil War, the 14th Amendment changed the relationship between national rights and state governments. Its Due Process Clause became the main path for applying many federal constitutional protections to the states.
This process is called incorporation, and it is central to modern civil liberties law.
The Supreme Court did not incorporate the entire Bill of Rights all at once. Instead, it used selective incorporation, deciding case by case whether a right is fundamental enough to bind the states. This means state governments must respect most major protections, such as free speech, the right to counsel, and protection from unreasonable searches.
Incorporation helps create a national baseline for individual rights while still leaving states room to govern in areas not covered by incorporated rights.
Understanding Civics: Incorporation of the Bill of Rights
The Fourteenth Amendment was written during Reconstruction, when Congress was trying to stop states from denying basic freedoms to formerly enslaved people. It contains several possible sources for national protection of rights. One is the Privileges or Immunities Clause, which speaks of rights of United States citizens.
In the Slaughter-House Cases of 1873, the Supreme Court gave that clause a very narrow reading. As a result, later courts usually relied on the Due Process Clause instead.
This choice shaped constitutional law for more than a century. It made the Court responsible for deciding which personal freedoms receive protection from state action.
The Court does not treat every liberty claim in the same way. It examines whether a claimed right is deeply rooted in the nation's history and traditions or necessary to a fair system of justice. This can make court decisions hard to predict.
A case often begins when a person says that a state law, police officer, prosecutor, judge, or local school violated a constitutional protection. The Court then compares the government action with earlier cases. For example, Gitlow v.
New York helped establish protection for speech against state punishment. Gideon v. Wainwright required states to provide lawyers for defendants charged with serious crimes who cannot afford one.
Mapp v. Ohio applied the rule that usually blocks illegally obtained evidence from being used in state criminal trials.
Incorporation does not mean every part of every amendment works identically in every setting. The Second Amendment was applied to the states in McDonald v. Chicago.
The protection against excessive fines reached the states in Timbs v. Indiana. Some provisions have not been applied in the same way.
States do not have to use a grand jury indictment before bringing serious criminal charges. The federal constitutional right to a jury in many civil lawsuits has not been applied to states. State constitutions can still grant broader rights.
A state may set stronger privacy rules for police searches or give more speech protection than the federal baseline. Federal law remains the minimum rule when an incorporated right applies.
Students meet these ideas in news stories about school protests, police searches, criminal trials, gun regulations, religious practice, and online speech. The key skill is identifying the government actor. A private company can make a rule that feels unfair without creating a constitutional case, while a public school or police department must follow constitutional limits.
It is useful to separate two issues. First, identify the specific right involved. Next, decide whether the government action burdens that right in a way the Constitution permits.
Court opinions matter because the broad words in the amendments gain practical meaning through cases. When studying a case, note the facts, the right claimed, the level of government involved, and the rule the Court announced.
Key Facts
- Incorporation means applying Bill of Rights protections to state governments through the 14th Amendment.
- The key constitutional text is the 14th Amendment Due Process Clause: no state may deprive any person of life, liberty, or property without due process of law.
- Before incorporation, the Bill of Rights mainly restricted the federal government, as confirmed in Barron v. Baltimore in 1833.
- Selective incorporation means the Supreme Court incorporates rights one at a time through individual cases.
- Most protections in the 1st, 4th, 5th, 6th, and 8th Amendments have been incorporated against the states.
- Incorporation creates a national floor of rights, meaning states may give more protection but usually cannot give less.
Vocabulary
- Incorporation
- The legal process by which protections in the Bill of Rights are applied to state governments through the 14th Amendment.
- 14th Amendment
- A Reconstruction amendment that protects citizenship, due process, and equal protection against state action.
- Due Process Clause
- The part of the 14th Amendment that says states cannot deprive people of life, liberty, or property without fair legal procedures.
- Selective Incorporation
- The Supreme Court's case by case method of deciding which Bill of Rights protections apply to the states.
- State Action
- An action by a state government or its officials that can be limited by constitutional protections.
Common Mistakes to Avoid
- Saying the Bill of Rights always applied to the states is wrong because it originally limited only the federal government in most situations.
- Treating incorporation as one single event is wrong because the Supreme Court incorporated rights gradually through many cases.
- Confusing the Due Process Clause with the Equal Protection Clause is wrong because incorporation mostly relies on due process, while equal protection focuses on unequal treatment under the law.
- Assuming every part of the Bill of Rights is incorporated is wrong because the Court has incorporated most, but not all, protections against the states.
Practice Questions
- 1 A state court criminal trial takes place in 1920, before many major criminal procedure rights were incorporated. If 8 of the first 10 amendments existed in the Bill of Rights, but only 2 had been applied to the states by that time, how many of those 8 had not yet been applied to the states?
- 2 Suppose a class timeline lists 12 major Supreme Court cases about incorporation. If 9 cases incorporate criminal procedure rights and 3 incorporate speech or religion rights, what percentage of the cases listed involve criminal procedure rights?
- 3 A state passes a law that limits political speech in public parks. Explain how the incorporation doctrine affects whether the First Amendment can be used to challenge the state law.