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Amdt14.S1.4.1 Overview of Incorporation of the Bill of Rights

Fourteenth Amendment, Section 1:

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.

The Bill of Rights, comprising the first ten amendments to the Constitution, protects certain rights belonging to individuals and states against infringement by the federal government. While some provisions of the Constitution expressly prohibit the states from taking certain actions,1 the Bill of Rights does not explicitly bind the states,2 and the Supreme Court in early cases declined to apply the Bill of Rights to the states directly.3 However, following the ratification of the Fourteenth Amendment, the Supreme Court has interpreted the Fourteenth Amendment’s Due Process Clause to impose on the states many of the Bill of Rights’ limitations, a doctrine sometimes called “incorporation” against the states through the Due Process Clause.

In the early years of the Republic, both Congress and the Supreme Court appear to have believed that the Bill of Rights restricted only the federal government, not the states. When Congress was considering the constitutional amendments that later became the Bill of Rights, the Senate rejected an amendment that would have applied to the states, which read: “The equal rights of conscience, the freedom of speech or of the press, and the right of trial by jury in criminal cases shall not be infringed by any State.” 4 Beginning with Chief Justice John Marshall’s opinion in the 1833 case Barron v. Baltimore, a number of nineteenth century Supreme Court decisions rejected arguments that the first eight amendments to the Constitution should limit the states’ ability to restrict protected rights.5

Following the ratification of the Fourteenth Amendment in 1868, the Court changed course and held that the Due Process Clause of the Fourteenth Amendment prohibits the states from depriving their citizens of certain privileges and protections contained in the Bill of Rights.6 Subsequent decisions of the Court have held that many provisions of the Bill of Rights bind the states; however, there are some Bill of Rights provisions that the Court has not applied to the states.7

See, e.g., U.S. Const. art. I, § 10, cl. 1 ( “No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.” ). back
The First Amendment provides that “Congress shall make no law” contrary to its protections. U.S. Const. amend. I. Other Bill of Rights Amendments provide that certain rights “shall not be infringed,” U.S. Const. amend. II, or “shall not be violated,” U.S. Const. amend. IV, or otherwise require or prohibit certain government actions without specifying the relevant government entity, e.g., U.S. Const. amends. III, V, VI, VII, VIII. back
See, e.g., Barron v. Baltimore 32 U.S. (7 Pet.) 243 (1833). back
1 Annals of Congress 755 (August 17, 1789). James Madison declared the rejected amendment to be “the most valuable of the whole list.” Id. back
32 U.S. (7 Pet.) 243 (1833). See also Livingston’s Lessee v. Moore, 32 U.S. (7 Pet.) 469 (1833); Permoli v. Municipality No. 1, 44 U.S. (3 How.) 589, 609 (1845); Fox v. Ohio, 46 U.S. (5 How.) 410 (1847); Smith v. Maryland, 59 U.S. (18 How.) 71 (1855); Withers v. Buckley, 61 U.S. (20 How.) 84 (1858); Pervear v. Massachusetts, 72 U.S. (5 Wall.) 475 (1867); Twitchell v. Commonwealth, 74 U.S. (7 Wall.) 321 (1869). The Ninth and Tenth Amendments do not enumerate separate substantive rights for protection. See Amdt9.1 Overview of Ninth Amendment, Unenumerated Rights; Amdt10.1 Overview of Tenth Amendment, Rights Reserved to the States and the People. back
See Amdt14.S1.4.2 Early Doctrine on Incorporation of the Bill of Rights. back
See Amdt14.S1.4.3 Modern Doctrine on Selective Incorporation of Bill of Rights. back