Modern Doctrine on Selective Incorporation of Bill of Rights

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All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Modern Supreme Court doctrine embraces the doctrine of selective incorporation of the Bill of Rights against the states, meaning that the Court has held on a case-by-case basis that many of the provisions of the Bill of Rights limit state government action. Numerous Supreme Court decisions hold that particular provisions of the Bill of Rights have been applied to the states through the Fourteenth Amendment’s Due Process Clause.1 Primarily through the doctrine of selective incorporation, the Court has held that most provisions of the Bill of Rights apply to the states.2

The Court has applied to the states the First Amendment’s3 guarantee of free exercise of religion,4 the prohibition on government establishment of religion,5 the rights of freedom of speech,6 freedom of the press,7 and freedom of assembly,8 and the right to petition the government.9 The Court has also incorporated against the states the Second Amendment right to keep and bear arms10 and the Fourth Amendment right to be free from unreasonable searches and seizures.11 Numerous Supreme Court cases have applied provisions of the Fifth12 and Sixth Amendments13 to restrict state government action. In addition, the Court has applied to the states the Eighth Amendment’s14 restrictions on excessive bail,15 excessive fines,16 and cruel and unusual punishments.17

By contrast, the Court has declined to apply to the states the Fifth Amendment’s right to a grand jury indictment18 and the Seventh Amendment’s guarantee of a jury trial in civil cases in which the amount in controversy exceeds twenty dollars.19 The Court has had no occasion to decide whether the states must comply with the Third Amendment’s limitations on quartering troops in homes.20 The Ninth and Tenth Amendments do not expressly enumerate separate substantive rights for protection,21 though the Court has cited the Ninth Amendment in litigation against a state.22

In deciding whether the Fourteenth Amendment incorporated a specific right against the states, the Court asks whether the right at issue is “both ‘fundamental to our scheme of ordered liberty’ and ‘deeply rooted in this Nation’s history and tradition.’” 23 A majority of the Court has consistently held that, if a provision of the Bill of Rights is incorporated against the states, the provision imposes the same substantive limitations on the states and the federal government.24 The Court has thus “rejected the notion that the Fourteenth Amendment applies to the State only a ‘watered-down, subjective version of the individual guarantees of the Bill of Rights.’” 25

1: E.g., Mapp v. Ohio, 367 U.S. 643 (1961); Klopfer v. North Carolina, 386 U.S. 213 (1967); Duncan v. Louisiana, 391 U.S. 145 (1968); Ashe v. Swenson, 397 U.S. 436 (1970); Baldwin v. New York, 399 U.S. 66 (1970).
2: In some cases, particularly earlier cases, the Court held that certain rights applied against the states because the rights at issue were fundamental and not merely because they were named in the Bill of Rights and incorporated by the Fourteenth Amendment. E.g., Powell v. Alabama, 287 U.S. 45, 67–68 (1932). For additional discussion of this distinction, see Amdt14.S1.4.2 Early Doctrine on Incorporation of the Bill of Rights. Whichever formulation was originally used, the Court now generally uses the language of incorporation. See Duncan v. Louisiana, 391 U.S. 145, 148 (1968).
3: See Amdt1.1 Overview of First Amendment, Fundamental Freedoms.
4: Hamilton v. Regents, 293 U.S. 245, 262 (1934); Cantwell v. Connecticut, 310 U.S. 296, 300, 303 (1940).
5: Everson v. Bd. of Educ., 330 U.S. 1, 3, 7, 8 (1947); Illinois ex rel. McCollum v. Bd. of Educ., 333 U.S. 203 (1948).
6: Gitlow v. New York, 268 U.S. 652, 666 (1925); Fiske v. Kansas, 274 U.S. 380 (1927); Stromberg v. California, 283 U.S. 359 (1931).
7: Near v. Minnesota ex rel. Olson, 283 U.S. 697, 701 (1931).
8: DeJonge v. Oregon, 299 U.S. 353 (1937).
9: DeJonge v. Oregon, 299 U.S. at 364, 365; Hague v. CIO, 307 U.S. 496 (1939); Bridges v. California, 314 U.S. 252 (1941).
10: McDonald v. Chicago, 561 U.S. 742 (2010); see also Amdt2.1 Overview of Second Amendment, Right to Bear Arms.
11: Wolf v. Colorado, 338 U.S. 25 (1949); Mapp v. Ohio, 367 U.S. 643 (1961); see also Amdt4.2 Historical Background on Fourth Amendment to Amdt4.7.4 Good Faith Exception to Exclusionary Rule.
12: Benton v. Maryland, 395 U.S. 784 (1969) (double jeopardy); Ashe v. Swenson, 397 U.S. 436 (1970) (collateral estoppel); Malloy v. Hogan, 378 U.S. 1 (1964) (self-incrimination); Griffin v. California, 380 U.S. 609 (1965) (same); Chi., Burlington & Quincy R.R. v. City of Chicago, 166 U.S. 226 (1897) (just compensation); see also Amdt5.2.1 Historical Background on Grand Jury Clause to Amdt5.9.10 Enforcing Right to Just Compensation.
13: Klopfer v. North Carolina, 386 U.S. 213 (1967) (speedy trial); In re Oliver, 333 U.S. 257 (1948) (public trial); Duncan v. Louisiana, 391 U.S. 145 (1968) (jury trial); Irvin v. Dowd, 366 U.S. 717 (1961) (impartial jury); Turner v. Louisiana, 379 U.S. 466 (1965) (same); In re Oliver, 333 U.S. 257 (1948) (notice of charges); Pointer v. Texas, 380 U.S. 400 (1965) (confrontation); Douglas v. Alabama, 380 U.S. 415 (1965) (same); Washington v. Texas, 388 U.S. 14 (1967) (compulsory process); Powell v. Alabama, 287 U.S. 45 (1932) (right to counsel); Gideon v. Wainwright, 372 U.S. 335 (1963) (same); see also Amdt6.1 Overview of Sixth Amendment, Rights in Criminal Prosecutions.
14: See Amdt8.1 Overview of Eighth Amendment, Cruel and Unusual Punishment.
15: McDonald v. City of Chicago, 561 U.S. 742, 764 n.12 (2010); Schilb v. Kuebel, 404 U.S. 357, 365 (1971).
16: Timbs v. Indiana, No. 17-1091, slip op. at 2 (2019).
17: Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947); Robinson v. California, 370 U.S. 660 (1962).
18: Hurtado v. California, 110 U.S. 516 (1884); see also Amdt5.2.1 Historical Background on Grand Jury Clause to Amdt5.2.3 Military Exception to Grand Jury Clause.
19: Cf. Adamson v. California, 332 U.S. 46, 64–65 (1947) (Frankfurter, J., concurring). See Minneapolis & St. Louis R.R. v. Bombolis, 241 U.S. 211 (1916); see also Amdt7.2.1 Historical Background of Jury Trials in Civil Cases to Amdt7.3.2 Appeals from State Courts to the Supreme Court.
20: See Amdt3.1 Overview of Third Amendment, Quartering Soldiers.
21: See Amdt9.1 Overview of Ninth Amendment, Unenumerated Rights; Amdt10.1 Overview of Tenth Amendment, Rights Reserved to the States and the People.
22: See Griswold v. Connecticut, 381 U.S. 479 (1965).
23: Timbs v. Indiana, No. 17-1091, slip op. at 7 (2019) (quoting McDonald v. City of Chicago, 561 U.S. 742, 767 (2010)).
24: Malloy v. Hogan, 378 U.S. 1, 10–11 (1964); Ker v. California, 374 U.S. 23 (1963); Griffin v. California, 380 U.S. 609 (1965); Baldwin v. New York, 399 U.S. 66 (1970); Williams v. Florida, 399 U.S. 78 (1970); Ballew v. Georgia, 435 U.S. 223 (1978); First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 780 n.16 (1978) (specifically the First Amendment Speech and Press Clauses); Crist v. Bretz, 437 U.S. 28 (1978); Burch v. Louisiana, 441 U.S. 130 (1979).
25: Williams v. Florida, 399 U.S. 78, 106–107 (1970) (Black, J., concurring in part and dissenting in part), quoting Malloy, 378 U.S. at 10–11 (1964). Some Justices have argued for the application of a dual-standard test of due process for the Federal Government and the states. Justice Harlan first took this position in Roth v. United States, 354 U.S. 476, 496 (1957) (concurring in part and dissenting in part). See also Ker v. California, 374 U.S. 23, 45–46 (1963) (Harlan, J., concurring); Williams v. Florida, 399 U.S. 78, 143–45 (1970) (Stewart, J. concurring in part and dissenting in part); Duncan v. Louisiana, 391 U.S. 145, 173–83 (1968) (Harlan, J., dissenting); Bloom v. Illinois, 391 U.S. 194, 211 (1968) (Fortas, J., concurring); Johnson v. Louisiana, 406 U.S. 356, 366 (1972) (Powell, J., concurring); Crist v. Bretz, 437 U.S. 28, 52–53 (1978) (Powell, J., dissenting); Buckley v. Valeo, 424 U.S. 1, 290 (1976) (Rehnquist, J., concurring in part and dissenting in part); Bellotti, 435 U.S. at 822 (Rehnquist, J., dissenting). Those Justices rejected incorporation and also argued that, if the same limitations were to apply, the standards previously developed for the Federal Government would have to be diluted in order to give the states more leeway in the operation of their criminal justice systems.