Selective incorporation is the constitutional doctrine through which the U.S. Supreme Court has applied most of the Bill of Rights to state and local governments, one provision at a time, using the Due Process Clause of the Fourteenth Amendment as the vehicle. The process has unfolded over more than a century of case law, and the result is that nearly every protection in the first ten amendments now constrains state governments, not just the federal government. But “nearly every” is doing real work in that sentence, and the piecemeal way this happened has shaped American law in ways that still matter today.
Why the Bill of Rights Originally Applied Only to the Federal Government
When the Bill of Rights was ratified in 1791, it was understood to limit only the powers of the national government. The First Amendment begins with “Congress shall make no law,” and the rest of the amendments were framed with the same audience in mind. States had their own constitutions and their own bills of rights, and the federal amendments were not thought to reach state action at all.
This understanding was not just assumed; it was confirmed by the Supreme Court in 1833 in Barron v. Baltimore. A wharf owner in Baltimore claimed the city had violated his Fifth Amendment right against taking property without just compensation. Chief Justice John Marshall, writing for a unanimous Court, held that the Fifth Amendment restrained only the federal government. If the people of a state wanted protection against their own state government’s actions, they had to look to their state constitution, not the federal Bill of Rights. That ruling settled the question for decades.
The Fourteenth Amendment Changed the Equation
The Civil War and its aftermath produced the Fourteenth Amendment, ratified in 1868, which introduced language that would eventually become the foundation for incorporation. The amendment’s Due Process Clause declares that no state shall “deprive any person of life, liberty, or property, without due process of law.” Its Equal Protection Clause and Privileges or Immunities Clause added further constraints on state power.
Almost immediately, legal scholars and litigants began arguing that the Fourteenth Amendment was meant to apply the entire Bill of Rights to the states. This position, known as total incorporation, had prominent advocates. Justice Hugo Black championed it for decades, arguing that the framers of the Fourteenth Amendment intended to extend every federal protection to citizens in their dealings with state governments. The historical evidence for this reading is genuinely debatable, and historians have gone back and forth over it for more than a century.
The Court never adopted total incorporation. Instead, it took the selective approach: examining individual rights one at a time and deciding whether each one was fundamental enough to be “incorporated” against the states through the Fourteenth Amendment’s Due Process Clause. This case-by-case method is what gives the doctrine its name.
How the Court Decides Which Rights Qualify
The test the Court has used has evolved in its phrasing but stayed fairly consistent in spirit. In early incorporation cases, the question was whether a right was “implicit in the concept of ordered liberty,” a phrase from the 1937 case Palko v. Connecticut. Justice Benjamin Cardozo, writing for the Court, framed the inquiry as whether a particular guarantee was so rooted in the traditions and conscience of the American people that it ranked as fundamental. Under that standard, some rights made the cut and others did not.
By the 1960s, the standard shifted slightly. In Duncan v. Louisiana (1968), the Court asked whether a right was “fundamental to the American scheme of justice.” The practical effect was similar, but the framing was somewhat broader, and the Warren Court era saw a rapid expansion of incorporated rights. The Court looked at whether a civilized legal system could function fairly without the protection in question. If the answer was no, the right applied to the states.
In practice, the Court has almost always concluded that a right is fundamental once it seriously considers the question. The selective incorporation process has been more of a slow roll than a genuine filter. Most of the Bill of Rights has been incorporated; the exceptions are narrow and specific.
The Major Milestones
Incorporation did not happen in a single wave. The earliest cases trickled in during the early twentieth century, and the pace accelerated dramatically in the 1960s. A rough timeline gives a sense of how the doctrine built up over time.
The first clear incorporation came in 1897, when the Court held in Chicago, Burlington and Quincy Railroad Co. v. City of Chicago that the Fifth Amendment’s requirement of just compensation for takings of private property applied to the states. This happened before the Court had even formalized the incorporation doctrine, but the reasoning pointed in that direction.
Free speech followed in 1925 with Gitlow v. New York, where the Court assumed that the First Amendment’s speech protections were among the “fundamental personal rights and liberties” protected by the Fourteenth Amendment. Freedom of the press was incorporated in 1931 (Near v. Minnesota), and the free exercise of religion in 1940 (Cantwell v. Connecticut). The establishment clause of the First Amendment came in 1947 with Everson v. Board of Education.
The 1960s brought a rush of criminal procedure rights. The Court incorporated the Fourth Amendment’s protection against unreasonable searches and seizures (Mapp v. Ohio, 1961), the Eighth Amendment’s ban on cruel and unusual punishment (Robinson v. California, 1962), the Sixth Amendment’s right to counsel in felony cases (Gideon v. Wainwright, 1963), the Fifth Amendment’s privilege against self-incrimination (Malloy v. Hogan, 1964), the Sixth Amendment’s right to confront witnesses (Pointer v. Texas, 1965), and the right to a jury trial in criminal cases (Duncan v. Louisiana, 1968). These decisions transformed the criminal justice systems of every state in the country.
More recent landmark incorporations include the Second Amendment’s individual right to keep and bear arms, which the Court applied to the states in McDonald v. City of Chicago in 2010. And in Timbs v. Indiana in 2019, the Court unanimously incorporated the Eighth Amendment’s Excessive Fines Clause, one of the last remaining unincorporated provisions with broad practical relevance.
What Remains Unincorporated
After more than a century of selective incorporation, only a handful of Bill of Rights provisions have not been applied to the states. The Third Amendment’s prohibition on quartering soldiers in private homes has never been directly incorporated by the Supreme Court, though a federal appeals court applied it to the states in a 1982 case, and the issue is so rarely litigated that the Supreme Court has had little reason to weigh in.
The Fifth Amendment’s requirement of a grand jury indictment for serious federal crimes has not been incorporated. This is one of the more consequential gaps. Many states use grand juries, but others rely on a prosecutor’s information or preliminary hearing to bring charges. The Court’s refusal to incorporate this right means states remain free to choose their own approach to charging defendants.
The Seventh Amendment’s right to a jury trial in civil cases involving more than twenty dollars has also not been incorporated. States can and do set their own thresholds for when civil jury trials are available, and many have minimum amounts well above twenty dollars. The outdated dollar figure in the Seventh Amendment makes this one of the less controversial non-incorporations.
These gaps are small enough that, for practical purposes, almost all of the Bill of Rights now applies to the states. But the fact that the Court never embraced total incorporation means, at least in theory, that each unincorporated right would need its own case to cross the line.
Why Selective Rather Than Total
The choice between selective and total incorporation was not just a technicality. It reflected a genuine disagreement about how much the Constitution constrains state governments and how much room states should have to experiment with their own legal procedures.
Advocates of total incorporation, like Justice Black, argued that the selective approach gave judges too much discretion. Under selective incorporation, the Court essentially decides which rights are “fundamental” and which are not, and that judgment call invites the very kind of subjective decision-making that a written Bill of Rights is supposed to prevent. If the framers of the Fourteenth Amendment intended all of the Bill of Rights to apply, then judges should not be in the business of picking and choosing.
On the other side, defenders of the selective approach argued that some provisions of the Bill of Rights were specific to the structure of the federal government and did not translate naturally to the states. The grand jury requirement is a good example: it reflects a particular procedural choice that many states had already rejected in favor of alternatives they considered equally protective of defendants’ rights. Forcing every state to adopt grand juries would override those choices without clear constitutional necessity.
The selective approach also allowed the Court to move cautiously and build consensus. Incorporating rights one at a time meant each decision could be argued and decided on its own merits, and the Court could wait until a strong case presented itself before extending a particular guarantee to the states. This gradualism had costs, though. Defendants in some states went decades without protections that federal defendants enjoyed, simply because no suitable case had reached the Supreme Court.
The Jot-for-Jot Debate
One wrinkle that caused confusion for years was whether an incorporated right applied to the states in exactly the same way it applied to the federal government. Early incorporation decisions sometimes suggested that states had more flexibility, that the Fourteenth Amendment required states to provide the “essence” of a right without necessarily following every detail of federal doctrine. This was sometimes called the “ordered liberty” or “fundamental fairness” approach.
By the mid-twentieth century, the Court moved toward what critics and supporters alike called “jot-for-jot” incorporation. Under this view, once a right is incorporated, it applies to the states with the same scope, the same exceptions, and the same doctrinal details as it applies to the federal government. The Sixth Amendment’s right to a jury trial, for instance, means the same thing whether you are in a federal courtroom or a state one.
This jot-for-jot approach has mostly prevailed, but not without exceptions. The Court has occasionally allowed some variation. The size of a jury is one example: while federal criminal juries traditionally have twelve members, the Court held in Williams v. Florida (1970) that a six-person jury satisfied the Sixth Amendment in state courts. Whether this counts as a deviation from jot-for-jot incorporation or simply a reinterpretation of what the Sixth Amendment requires across the board depends on whom you ask. The practical effect is that state criminal procedures can still look somewhat different from federal ones, even for incorporated rights.
Common Misconceptions
The most widespread misunderstanding is that the Bill of Rights has always applied to state governments. Most people are surprised to learn that for the first 130-plus years of the Constitution’s existence, states were largely free to restrict speech, establish religions, or conduct searches in ways that would have been unconstitutional if done by the federal government. The process of incorporation was slow and uneven, and it is still technically incomplete.
Another misconception is that the Privileges or Immunities Clause of the Fourteenth Amendment does the heavy lifting. This clause would seem like the natural textual home for incorporation. It says no state shall “abridge the privileges or immunities of citizens of the United States.” But the Supreme Court gutted this clause in the Slaughter-House Cases of 1873, interpreting it so narrowly that it became essentially useless for incorporation purposes. The Court has never overruled those cases, though individual justices have called for doing so. Justice Clarence Thomas, for instance, argued in McDonald v. City of Chicago that the Second Amendment should be incorporated through the Privileges or Immunities Clause rather than the Due Process Clause. He did not get a majority to agree.
The reliance on the Due Process Clause for incorporation has always struck some legal scholars as awkward. “Due process” sounds like it is about procedural fairness, about getting a hearing before the government takes your rights. Using it to incorporate substantive rights like free speech or the right to bear arms requires treating “due process” as protecting not just fair procedures but also the substance of fundamental liberties. This doctrine, known as substantive due process, has been controversial in its own right, and the incorporation debate is entangled with broader disagreements about how far substantive due process should reach.
How Selective Incorporation Shapes Everyday Law
The practical consequence of selective incorporation is enormous, even though most people never think about it. Every time a state or city passes a law restricting speech, regulating firearms, or setting criminal procedure rules, the incorporated provisions of the Bill of Rights set the constitutional floor. A state can provide more protection than the Bill of Rights requires, but it cannot provide less.
Consider policing. The exclusionary rule, which bars prosecutors from using evidence obtained through unconstitutional searches, was incorporated against the states in Mapp v. Ohio. Before that decision, state police in many jurisdictions faced no federal constitutional consequence for conducting illegal searches. After Mapp, police departments across the country had to retrain officers and change practices to comply with Fourth Amendment standards. The same story played out with Miranda warnings after the Court’s 1966 decision in Miranda v. Arizona, which built on the incorporated right against self-incrimination.
Gun regulation is a more recent example. Before McDonald v. City of Chicago incorporated the Second Amendment in 2010, it was at least arguable that states and cities had broad authority to restrict firearms without running into federal constitutional limits. After McDonald, every gun regulation at the state and local level must satisfy whatever standard the Second Amendment requires, a question the Court has continued to refine in subsequent cases.
The Privileges or Immunities Clause and Possible Future Shifts
Although the Due Process Clause has been the vehicle for incorporation since the early twentieth century, there is an ongoing scholarly and judicial conversation about whether the Privileges or Immunities Clause should be revived. Some originalist scholars argue that the Fourteenth Amendment’s framers clearly intended this clause to apply the Bill of Rights to the states, and that the Slaughter-House Cases were wrongly decided.
If the Court ever overruled or narrowed the Slaughter-House Cases and shifted incorporation to the Privileges or Immunities Clause, the immediate practical effects might be modest. Most of the Bill of Rights is already incorporated. But the doctrinal shift could matter in subtler ways. It could affect how the Court thinks about unenumerated rights, those not listed in the Bill of Rights but recognized under substantive due process. Reproductive rights, marriage rights, and other liberties that the Court has grounded in substantive due process could be harder or easier to defend depending on which clause carries the weight. The textual home of incorporation turns out to matter, even if the list of incorporated rights stays the same.
For now, selective incorporation through the Due Process Clause remains the settled framework. The doctrine has done most of its work already, with the vast majority of the Bill of Rights firmly applied to every level of government in the country. The few remaining unincorporated provisions are unlikely to generate major litigation, though the grand jury question could surface if a state’s charging practices are ever challenged on those specific grounds. The architecture of American constitutional rights, the idea that the same fundamental protections follow you whether you are dealing with a federal agent or a local police officer, rests almost entirely on this incremental, case-by-case process that the Court chose over a century ago.