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Incorporation doctrine and the Supreme Court

The incorporation doctrine refers to the legal principle by which many rights guaranteed in the U.S. Bill of Rights are applied to the states through the Fourteenth Amendment's due process clause. Initially established in the 1833 Supreme Court case of Barron v. Baltimore, the doctrine held that the Bill of Rights limited only the federal government. However, following the ratification of the Fourteenth Amendment in 1868, legal challenges sought to extend these protections to state actions. Early cases, such as the Slaughterhouse Cases and Hurtado v. California, demonstrated the Court's cautious approach in applying these rights to the states.

Over time, the Supreme Court gradually recognized various rights from the Bill of Rights as applicable to the states, often through decisions that interpreted the due process clause. Landmark cases such as Gitlow v. New York and Mapp v. Ohio showcased this evolving interpretation, leading to the incorporation of essential rights, including free speech and protection against unreasonable searches. While the selective incorporation doctrine became the prevailing view, debates continue regarding the extent and methodology of incorporating rights, with some justices advocating for total incorporation of the Bill of Rights. This ongoing legal discourse illustrates the complexities and nuances of constitutional protections in the United States, reflecting diverse perspectives on individual liberties and state authority.

Full Article

DEFINITION: Process by which the Supreme Court has gradually nationalized the Bill of Rights, requiring state governments to extend to residents much the same rights as the federal government must.

SIGNIFICANCE: The Court held that some rights protected by the Constitution's first eight amendments are also safeguarded by the Fourteenth Amendment's Due Process Clause.

In Barron v. Baltimore (1833), the Supreme Court ruled that rights enumerated in the Bill of Rights restrained the actions of the United States government, not the actions of the state governments. Specifically, the Court held that the Takings Clause of the Fifth Amendment did not apply to a dispute over whether the city of Baltimore had taken Barron’s property for public use without just compensation.

After the passage of the Fourteenth Amendment in 1868, lawyers began to seek ways to use its provisions to undermine Barron. The two provisions that lent themselves to this effort were the Privileges or Immunities Clause and the Due Process Clause. These clauses appear next to one another in the amendment: “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.”

In the Slaughterhouse Cases (1873), the attorney for the petitioners argued that engaging in a lawful and useful occupation was a privilege or immunity of US citizenship and an aspect of liberty or property that could not be taken away without due process of law. At issue was an act of the Louisiana legislature creating a corporation and bestowing on that corporation a monopoly over the New Orleans slaughterhouse industry. Butchers disadvantaged by the law asked the courts to declare it unconstitutional. Failing to get a favorable result in the state courts, they appealed to the US Supreme Court.

Justice Samuel F. Miller wrote an opinion that differentiated between privileges or immunities of US citizenship and privileges or immunities of state citizenship. Only the former were protected by the Fourteenth Amendment, and engaging in a lawful and useful occupation was not among them; it was an aspect of state, not national, citizenship. Similarly, Justice Miller argued that due process protected persons against takings of life, liberty, or property by improper procedures but did not limit the substance of laws themselves.

The Due Process Clause

The Court continued its narrow interpretation of the Privileges or Immunities Clause in subsequent cases, but its view of the Due Process Clause gradually changed. In Hurtado v. California (1884), the Court rejected the contention that the Fifth Amendment right to indictment by a grand jury in serious criminal cases was part of Fourteenth Amendment due process. However, in Chicago, Burlington, and Quincy Railroad Co. v. Chicago (1897), the Court held that the Fifth Amendment right to just compensation when private property is taken for public use is part of the Fourteenth Amendment protection against property being taken without due process. The Court continued to view criminal procedure rights as less important in Maxwell v. Dow (1900) and Twining v. New Jersey (1908). In Maxwell, the Court found trial by jury not to be incorporated into Fourteenth Amendment due process, and in Twining, the justices reached a similar conclusion concerning the immunity against compulsory self-incrimination. In the latter case, the Court recognized that some of the rights safeguarded by the first eight amendments might be part of the concept of due process and, therefore, be protected against state action.

Additional Incorporations

It was some time after Twining before the Court identified additional provisions of the first eight amendments to be incorporated into the Fourteenth Amendment due process. In Gitlow v. New York (1925), the Court stated that it assumed that freedom of speech and press were among the liberties protected by the Fourteenth Amendment’s Due Process Clause. Nevertheless, it upheld Benjamin Gitlow’s conviction for violating the New York law prohibiting language that advocated the overthrow of the government by unlawful means. The Court subsequently held unconstitutional a conviction under a similar law in Fiske v. Kansas (1927) and overturned a state restriction on the press in Near v. Minnesota (1931), thereby confirming what it had assumed in Gitlow.

In 1932, the Court appeared to incorporate the right to counsel when it decided Powell v. Alabama, but it later ruled in Betts v. Brady (1942) that the Powell decision was limited to capital offenses. In a case reminiscent of Gitlow, the Court said in Hamilton v. Regents of the University of California (1934) that freedom of religion was part of the concept of due process, but that a religious pacifist was not entitled to an exemption from the university's required military training. The Court held in DeJonge v. Oregon (1937) that the right to assemble peacefully was implicit in due process. This right barred the state of Oregon from convicting Dirk DeJonge for attending a peaceful meeting sponsored by the Communist Party.

A few months after the DeJonge decision, the Court attempted to provide a rationale for its incorporation decisions through the case Palko v. Connecticut (1937). Frank Palko had been retried and convicted of first-degree murder after his conviction for second-degree murder was overturned by the state supreme court. Prosecutors argued, and the state high court agreed, that the trial court judge erred in excluding Palko’s confession to robbery and murder in the first trial. Palko’s attorney argued that the two trials constituted double jeopardy in violation of the Fifth Amendment, as incorporated by the Due Process Clause. Justice Benjamin N. Cardozo wrote for the Court that only those rights “implicit in the concept of ordered liberty” were part of the notion of due process. These rights were so important “that neither liberty nor justice would exist if they were sacrificed.” Justice Cardozo did not find the sort of double jeopardy involved in the Palko case inconsistent with the nation’s fundamental principles of justice, and double jeopardy was, accordingly, not incorporated.

After Palko, the Court once again incorporated rights at a deliberate pace. It absorbed freedom to petition for redress of grievances in Hague v. Congress of Industrial Organizations (1939). Cantwell v. Connecticut (1940) confirmed the Hamilton statement that freedom of religion had been incorporated. The Court assumed that the establishment of religion and the prohibition of cruel and unusual punishment were incorporated in 1947, although neither case, Everson v. Board of Education of Ewing Township and Louisiana ex rel. Francis v. Resweber, respectively, resulted in state action being overturned. The Court confirmed its assumptions in these two cases in Illinois ex rel. McCollum v. Board of Education (1948), which struck down a religious education program conducted on school property as a violation of the Establishment Clause, and Robinson v. California (1962), which found a law that made having an addiction to drugs a status crime, to be cruel and unusual punishment. In 1948, the Court incorporated the right to a public trial in the case of In re Oliver and the requirement of due notice of the charges against a criminal defendant in Cole v. Arkansas.

An Alternate View

In Adamson v. California (1947), the Court again confronted the matter of a rationale for its incorporation doctrine. In this case, the Court once again held that the immunity against self-incrimination was not a part of due process of law. In a lengthy dissent, Justice Hugo L. Black argued that the framers of the Fourteenth Amendment had intended to incorporate all of the provisions of the first eight amendments into the Fourteenth. The Court rejected his views by a 5-4 vote. Justices Frank Murphy and Wiley B. Rutledge, Jr., agreed with Black, but contended that the Court should not restrict the meaning of due process to the rights contained in the first eight amendments. Black, a textualist, wanted to limit the meaning of due process in this way. Justice William O. Douglas agreed with Black in Adamson but, in later cases, adopted the Murphy-Rutledge position.

Two years later, in Wolf v. Colorado (1949), Frankfurter put forward an alternative view of what incorporation meant. At issue was the Fourth Amendment concept of unreasonable search and seizure. Frankfurter conceded that this right was part of due process but argued that only the essential core of the right, not the specific meanings of that right, worked out by the federal courts for use in cases involving the US government restrained state action. Therefore, the exclusionary rule, which meant that federal judges could not admit criminal evidence seized in violation of the Fourth Amendment, did not apply to the states. Instead, the courts would have to determine on a case-by-case basis whether states had violated the essential core meaning of the Fourth Amendment. Justice Black referred to this doctrine as applying a “watered-down version” of the Bill of Rights to the states. The Frankfurter position dominated the Court in the 1950s, especially in criminal procedure matters such as search and seizure cases. The case-by-case approach ended with Mapp v. Ohio (1961), in which the Court held that states were obliged to follow the exclusionary rule.

After the Mapp decision, the Court incorporated an additional seven rights in seventeen years. The Court first acted on the right to counsel in felony cases in Gideon v. Wainwright (1963) and expanded this right to include misdemeanors where a jail term was possible in Argersinger v. Hamlin (1972). Next, it incorporated the immunity against self-incrimination in Malloy v. Hogan (1964) and the right to confront and cross-examine adverse witnesses in Pointer v. Texas (1965). The Court incorporated the right to a speedy trial in Klopfer v. North Carolina (1967) along with the right to compulsory process to obtain witnesses in Washington v. Texas (1968). It followed with the right to a jury trial in Duncan v. Louisiana (1968) and completed its incorporation jurisprudence with double jeopardy in Benton v. Maryland (1969). In McDonald v. Chicago (2010), the Court found the Fourteenth Amendment’s Due Process Clause incorporated the Second Amendment right to keep and bear arms. In Timbs v. Indiana (2019), the Court ruled that the Eighth Amendment's Excessive Fines Clause applies to the states and that protection from unreasonable fines is “fundamental to our scheme of ordered liberty,” making it enforceable under the Due Process Clause. While the Court has not explicitly ruled on whether the Excessive Bail Clause is incorporated, some lower courts treat it as such. Only the Third Amendment right against quartering soldiers, the Fifth Amendment right of grand jury indictment, and the Seventh Amendment right to a jury trial in civil cases remain beyond the scope of due process.

In New York State Rifle & Pistol Association v. Bruen (2022), the Court struck down a New York law requiring individuals to show “proper cause” to carry a handgun in public, holding that it violated constitutional protections, reinforcing the Second Amendment (recognizing the right to carry firearms outside the home for self-defense) and, through the Fourteenth Amendment, confirmed that this right applies against state laws that unduly restrict it.

However, in United States v. Rahimi (2024), the Court upheld a federal law prohibiting individuals subject to domestic-violence restraining orders from possessing firearms, holding that such restrictions are consistent with the Second Amendment when a person is found to pose a credible threat to others. In doing so, the Court marked a shift from the stricter standard in Bruen, allowing more flexibility in evaluating gun regulations.

The selective incorporation doctrine of Palko remains the majority view. However, Frankfurter’s case-by-case approach continues to enjoy considerable support. Justice John Marshall Harlan II, Chief Justice Warren Burger, and Justice Lewis F. Powell, Jr., supported the doctrine when they were on the Court. Chief Justice William H. Rehnquist succeeded them as the strongest proponent of the case-by-case approach on the Court, and the doctrine seems to enjoy some favor among several other Court members.


Bibliography

Abraham, Henry J., and Barbara A. Perry. Freedom and the Court: Civil Rights and Liberties in the United States. 8th ed., UP of Kansas, 2003.

Berger, Raoul. Government by Judiciary: The Transformation of the Fourteenth Amendment. Harvard UP, 1977.

Curtis, Michael. No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights. Duke UP, 1986.

"5.6 Info Brief: Incorporation." National Constitution Center, constitutioncenter.org/education/classroom-resource-library/classroom/5.6-info-brief-incorporation. Accessed 12 Apr. 2026.

Flack, Horace. The Adoption of the Fourteenth Amendment. Johns Hopkins UP, 1908.

James, J. B. The Framing of the Fourteenth Amendment. U of Illinois P, 1956.

Mykkeltvedt, Raold Y. Nationalization of the Bill of Rights: Fourteenth Amendment Due Process and the Procedural Rights. National UP, 1983.

"New York State Rifle & Pistol Association Inc. v. Bruen." Oyez, www.oyez.org/cases/2021/20-843. Accessed 12 Apr. 2026.

Perry, Michael J. We the People: The Fourteenth Amendment and the Supreme Court. Oxford UP, 2001.

Schultz, David A. Encyclopedia of the Supreme Court. 2nd ed., Facts on File, 2021.

"Selective Incorporation." Supreme Court Historical Society, civics.supremecourthistory.org/article/selective-incorporation. Accessed 12 Apr. 2026.

“United States v. Rahimi.” Harvard Law Review, 10 Nov. 2024, harvardlawreview.org/print/vol-138/united-states-v-rahimi/. Accessed 12 Apr. 2026.

Full Article

DEFINITION: Process by which the Supreme Court has gradually nationalized the Bill of Rights, requiring state governments to extend to residents much the same rights as the federal government must.

SIGNIFICANCE: The Court held that some rights protected by the Constitution's first eight amendments are also safeguarded by the Fourteenth Amendment's Due Process Clause.

In Barron v. Baltimore (1833), the Supreme Court ruled that rights enumerated in the Bill of Rights restrained the actions of the United States government, not the actions of the state governments. Specifically, the Court held that the Takings Clause of the Fifth Amendment did not apply to a dispute over whether the city of Baltimore had taken Barron’s property for public use without just compensation.

After the passage of the Fourteenth Amendment in 1868, lawyers began to seek ways to use its provisions to undermine Barron. The two provisions that lent themselves to this effort were the Privileges or Immunities Clause and the Due Process Clause. These clauses appear next to one another in the amendment: “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.”

In the Slaughterhouse Cases (1873), the attorney for the petitioners argued that engaging in a lawful and useful occupation was a privilege or immunity of US citizenship and an aspect of liberty or property that could not be taken away without due process of law. At issue was an act of the Louisiana legislature creating a corporation and bestowing on that corporation a monopoly over the New Orleans slaughterhouse industry. Butchers disadvantaged by the law asked the courts to declare it unconstitutional. Failing to get a favorable result in the state courts, they appealed to the US Supreme Court.

Justice Samuel F. Miller wrote an opinion that differentiated between privileges or immunities of US citizenship and privileges or immunities of state citizenship. Only the former were protected by the Fourteenth Amendment, and engaging in a lawful and useful occupation was not among them; it was an aspect of state, not national, citizenship. Similarly, Justice Miller argued that due process protected persons against takings of life, liberty, or property by improper procedures but did not limit the substance of laws themselves.

The Due Process Clause

The Court continued its narrow interpretation of the Privileges or Immunities Clause in subsequent cases, but its view of the Due Process Clause gradually changed. In Hurtado v. California (1884), the Court rejected the contention that the Fifth Amendment right to indictment by a grand jury in serious criminal cases was part of Fourteenth Amendment due process. However, in Chicago, Burlington, and Quincy Railroad Co. v. Chicago (1897), the Court held that the Fifth Amendment right to just compensation when private property is taken for public use is part of the Fourteenth Amendment protection against property being taken without due process. The Court continued to view criminal procedure rights as less important in Maxwell v. Dow (1900) and Twining v. New Jersey (1908). In Maxwell, the Court found trial by jury not to be incorporated into Fourteenth Amendment due process, and in Twining, the justices reached a similar conclusion concerning the immunity against compulsory self-incrimination. In the latter case, the Court recognized that some of the rights safeguarded by the first eight amendments might be part of the concept of due process and, therefore, be protected against state action.

Additional Incorporations

It was some time after Twining before the Court identified additional provisions of the first eight amendments to be incorporated into the Fourteenth Amendment due process. In Gitlow v. New York (1925), the Court stated that it assumed that freedom of speech and press were among the liberties protected by the Fourteenth Amendment’s Due Process Clause. Nevertheless, it upheld Benjamin Gitlow’s conviction for violating the New York law prohibiting language that advocated the overthrow of the government by unlawful means. The Court subsequently held unconstitutional a conviction under a similar law in Fiske v. Kansas (1927) and overturned a state restriction on the press in Near v. Minnesota (1931), thereby confirming what it had assumed in Gitlow.

In 1932, the Court appeared to incorporate the right to counsel when it decided Powell v. Alabama, but it later ruled in Betts v. Brady (1942) that the Powell decision was limited to capital offenses. In a case reminiscent of Gitlow, the Court said in Hamilton v. Regents of the University of California (1934) that freedom of religion was part of the concept of due process, but that a religious pacifist was not entitled to an exemption from the university's required military training. The Court held in DeJonge v. Oregon (1937) that the right to assemble peacefully was implicit in due process. This right barred the state of Oregon from convicting Dirk DeJonge for attending a peaceful meeting sponsored by the Communist Party.

A few months after the DeJonge decision, the Court attempted to provide a rationale for its incorporation decisions through the case Palko v. Connecticut (1937). Frank Palko had been retried and convicted of first-degree murder after his conviction for second-degree murder was overturned by the state supreme court. Prosecutors argued, and the state high court agreed, that the trial court judge erred in excluding Palko’s confession to robbery and murder in the first trial. Palko’s attorney argued that the two trials constituted double jeopardy in violation of the Fifth Amendment, as incorporated by the Due Process Clause. Justice Benjamin N. Cardozo wrote for the Court that only those rights “implicit in the concept of ordered liberty” were part of the notion of due process. These rights were so important “that neither liberty nor justice would exist if they were sacrificed.” Justice Cardozo did not find the sort of double jeopardy involved in the Palko case inconsistent with the nation’s fundamental principles of justice, and double jeopardy was, accordingly, not incorporated.

After Palko, the Court once again incorporated rights at a deliberate pace. It absorbed freedom to petition for redress of grievances in Hague v. Congress of Industrial Organizations (1939). Cantwell v. Connecticut (1940) confirmed the Hamilton statement that freedom of religion had been incorporated. The Court assumed that the establishment of religion and the prohibition of cruel and unusual punishment were incorporated in 1947, although neither case, Everson v. Board of Education of Ewing Township and Louisiana ex rel. Francis v. Resweber, respectively, resulted in state action being overturned. The Court confirmed its assumptions in these two cases in Illinois ex rel. McCollum v. Board of Education (1948), which struck down a religious education program conducted on school property as a violation of the Establishment Clause, and Robinson v. California (1962), which found a law that made having an addiction to drugs a status crime, to be cruel and unusual punishment. In 1948, the Court incorporated the right to a public trial in the case of In re Oliver and the requirement of due notice of the charges against a criminal defendant in Cole v. Arkansas.

An Alternate View

In Adamson v. California (1947), the Court again confronted the matter of a rationale for its incorporation doctrine. In this case, the Court once again held that the immunity against self-incrimination was not a part of due process of law. In a lengthy dissent, Justice Hugo L. Black argued that the framers of the Fourteenth Amendment had intended to incorporate all of the provisions of the first eight amendments into the Fourteenth. The Court rejected his views by a 5-4 vote. Justices Frank Murphy and Wiley B. Rutledge, Jr., agreed with Black, but contended that the Court should not restrict the meaning of due process to the rights contained in the first eight amendments. Black, a textualist, wanted to limit the meaning of due process in this way. Justice William O. Douglas agreed with Black in Adamson but, in later cases, adopted the Murphy-Rutledge position.

Two years later, in Wolf v. Colorado (1949), Frankfurter put forward an alternative view of what incorporation meant. At issue was the Fourth Amendment concept of unreasonable search and seizure. Frankfurter conceded that this right was part of due process but argued that only the essential core of the right, not the specific meanings of that right, worked out by the federal courts for use in cases involving the US government restrained state action. Therefore, the exclusionary rule, which meant that federal judges could not admit criminal evidence seized in violation of the Fourth Amendment, did not apply to the states. Instead, the courts would have to determine on a case-by-case basis whether states had violated the essential core meaning of the Fourth Amendment. Justice Black referred to this doctrine as applying a “watered-down version” of the Bill of Rights to the states. The Frankfurter position dominated the Court in the 1950s, especially in criminal procedure matters such as search and seizure cases. The case-by-case approach ended with Mapp v. Ohio (1961), in which the Court held that states were obliged to follow the exclusionary rule.

After the Mapp decision, the Court incorporated an additional seven rights in seventeen years. The Court first acted on the right to counsel in felony cases in Gideon v. Wainwright (1963) and expanded this right to include misdemeanors where a jail term was possible in Argersinger v. Hamlin (1972). Next, it incorporated the immunity against self-incrimination in Malloy v. Hogan (1964) and the right to confront and cross-examine adverse witnesses in Pointer v. Texas (1965). The Court incorporated the right to a speedy trial in Klopfer v. North Carolina (1967) along with the right to compulsory process to obtain witnesses in Washington v. Texas (1968). It followed with the right to a jury trial in Duncan v. Louisiana (1968) and completed its incorporation jurisprudence with double jeopardy in Benton v. Maryland (1969). In McDonald v. Chicago (2010), the Court found the Fourteenth Amendment’s Due Process Clause incorporated the Second Amendment right to keep and bear arms. In Timbs v. Indiana (2019), the Court ruled that the Eighth Amendment's Excessive Fines Clause applies to the states and that protection from unreasonable fines is “fundamental to our scheme of ordered liberty,” making it enforceable under the Due Process Clause. While the Court has not explicitly ruled on whether the Excessive Bail Clause is incorporated, some lower courts treat it as such. Only the Third Amendment right against quartering soldiers, the Fifth Amendment right of grand jury indictment, and the Seventh Amendment right to a jury trial in civil cases remain beyond the scope of due process.

In New York State Rifle & Pistol Association v. Bruen (2022), the Court struck down a New York law requiring individuals to show “proper cause” to carry a handgun in public, holding that it violated constitutional protections, reinforcing the Second Amendment (recognizing the right to carry firearms outside the home for self-defense) and, through the Fourteenth Amendment, confirmed that this right applies against state laws that unduly restrict it.

However, in United States v. Rahimi (2024), the Court upheld a federal law prohibiting individuals subject to domestic-violence restraining orders from possessing firearms, holding that such restrictions are consistent with the Second Amendment when a person is found to pose a credible threat to others. In doing so, the Court marked a shift from the stricter standard in Bruen, allowing more flexibility in evaluating gun regulations.

The selective incorporation doctrine of Palko remains the majority view. However, Frankfurter’s case-by-case approach continues to enjoy considerable support. Justice John Marshall Harlan II, Chief Justice Warren Burger, and Justice Lewis F. Powell, Jr., supported the doctrine when they were on the Court. Chief Justice William H. Rehnquist succeeded them as the strongest proponent of the case-by-case approach on the Court, and the doctrine seems to enjoy some favor among several other Court members.


Bibliography

Abraham, Henry J., and Barbara A. Perry. Freedom and the Court: Civil Rights and Liberties in the United States. 8th ed., UP of Kansas, 2003.

Berger, Raoul. Government by Judiciary: The Transformation of the Fourteenth Amendment. Harvard UP, 1977.

Curtis, Michael. No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights. Duke UP, 1986.

"5.6 Info Brief: Incorporation." National Constitution Center, constitutioncenter.org/education/classroom-resource-library/classroom/5.6-info-brief-incorporation. Accessed 12 Apr. 2026.

Flack, Horace. The Adoption of the Fourteenth Amendment. Johns Hopkins UP, 1908.

James, J. B. The Framing of the Fourteenth Amendment. U of Illinois P, 1956.

Mykkeltvedt, Raold Y. Nationalization of the Bill of Rights: Fourteenth Amendment Due Process and the Procedural Rights. National UP, 1983.

"New York State Rifle & Pistol Association Inc. v. Bruen." Oyez, www.oyez.org/cases/2021/20-843. Accessed 12 Apr. 2026.

Perry, Michael J. We the People: The Fourteenth Amendment and the Supreme Court. Oxford UP, 2001.

Schultz, David A. Encyclopedia of the Supreme Court. 2nd ed., Facts on File, 2021.

"Selective Incorporation." Supreme Court Historical Society, civics.supremecourthistory.org/article/selective-incorporation. Accessed 12 Apr. 2026.

“United States v. Rahimi.” Harvard Law Review, 10 Nov. 2024, harvardlawreview.org/print/vol-138/united-states-v-rahimi/. Accessed 12 Apr. 2026.

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