Selective Incorporation

The Bill of Rights reads like a national promise. Speech. Religion. Jury trials. Counsel. Protection against unreasonable searches. For many Americans, it feels obvious that these rules bind every government actor, from the FBI to your local police department.

But that instinct is historically wrong in a very specific way.

For much of the nation’s early history, the Bill of Rights limited the federal government and only the federal government. States could, and did, run criminal justice their own way. Some were careful. Some were brutal. The Constitution allowed the variation.

Selective incorporation is the story of how that changed, not all at once, not by a single amendment alone, but case by case through the Fourteenth Amendment’s Due Process Clause. It is one of the most important shifts in American constitutional law, and it explains why your everyday rights are enforced in state court even though the first ten amendments were not originally written to police the states.

What the Bill of Rights Originally Did

When the Bill of Rights was ratified in 1791, it was widely understood as a set of limits on the new national government. That understanding became formal constitutional law in Barron v. Baltimore (1833).

John Barron owned a wharf in Baltimore. City construction projects allegedly ruined his property by changing water flow and making the wharf unusable. Barron argued that the city had effectively taken his property without just compensation, violating the Fifth Amendment.

The Supreme Court disagreed. Chief Justice John Marshall held that the Fifth Amendment did not apply to the states. The Bill of Rights, the Court said, was adopted to restrain the federal government, not state governments.

That meant a practical reality that can feel alien today: a state could restrict speech more aggressively than Congress, conduct searches by local standards, and structure criminal procedure without being bound by federal Bill of Rights rules.

The Fourteenth Amendment Changed the Geometry

After the Civil War, the country rewrote the relationship between the individual and the states. The central text is the Fourteenth Amendment (1868), especially its command that no state shall “deprive any person of life, liberty, or property, without due process of law.”

That Due Process Clause became the vehicle for applying many Bill of Rights protections to the states. But it did not happen automatically.

Instead, the Supreme Court developed a doctrine: some rights are so fundamental to ordered liberty, or so deeply rooted in American traditions, that they count as part of the “liberty” protected by Fourteenth Amendment due process. When the Court makes that call for a specific protection, it is “incorporated” against the states.

This is selective incorporation. Selective because the Court incorporated some protections and not others, and often incorporated a right in substance while allowing states room to administer it differently in procedure.

Why Due Process Became the Path

Many readers eventually ask a sharp question: why is incorporation a Due Process story at all?

The short answer is that the Court largely shut down the idea that the Fourteenth Amendment’s Privileges or Immunities Clause would nationalize basic rights against the states in The Slaughter-House Cases (1873). After that, most of the work happened through Due Process.

That choice still matters today. It is why incorporation often sounds like a philosophical test about “fundamental” rights rather than a simple checklist of text that applies everywhere. It is also why there is recurring debate, including in McDonald v. Chicago (2010), about whether the Privileges or Immunities Clause should have done more of this work.

Why It Was Selective, Not Automatic

There were two major paths the Court could have taken after the Fourteenth Amendment.

Option 1: Total incorporation

Under this theory, the Fourteenth Amendment would make the entire Bill of Rights enforceable against the states in one sweep. Justice Hugo Black famously advocated versions of this view, arguing that it would be clearer and more democratically legitimate than letting judges decide which rights are “fundamental.”

Option 2: Selective incorporation

This is the approach the Court ultimately adopted. It asks, amendment by amendment and sometimes clause by clause, whether a particular protection is fundamental enough to apply to the states through due process.

The result is what we have today: most of the Bill of Rights applies to the states, but not all of it, and not always with identical edges.

The Incorporation Timeline in Plain English

If you want the shortest accurate summary of incorporation, it is this: the Supreme Court spent the twentieth century nationalizing constitutional rights, especially in criminal procedure, by applying them to the states.

Key milestones include:

• Gitlow v. New York (1925): recognized that freedom of speech and press are protected from state infringement through the Fourteenth Amendment (even while upholding Gitlow’s conviction under the era’s standards).
• Malloy v. Hogan (1964): incorporated the Fifth Amendment privilege against self-incrimination against the states.
• Mapp v. Ohio (1961): applied the Fourth Amendment exclusionary rule to the states, meaning illegally obtained evidence generally must be suppressed.
• Gideon v. Wainwright (1963): required states to provide counsel to indigent defendants in felony cases, with later decisions extending the right to any case that actually results in jail time.
• Miranda v. Arizona (1966): created a Fifth Amendment-based set of warnings and rules for custodial interrogation. It is not usually described as “incorporation” in the same way, but it is inseparable from the nationalization of police procedure.
• Duncan v. Louisiana (1968): incorporated the right to a jury trial in serious criminal cases.
• Benton v. Maryland (1969): incorporated the Double Jeopardy Clause against the states.
• McDonald v. Chicago (2010): incorporated the Second Amendment right recognized in District of Columbia v. Heller (2008) against the states.
• Timbs v. Indiana (2019): incorporated the Eighth Amendment Excessive Fines Clause.
• Ramos v. Louisiana (2020): required jury unanimity for serious criminal convictions in state court, completing a major piece of Sixth Amendment uniformity.

It was not one revolution. It was dozens of decisions, each one expanding the Fourteenth Amendment’s reach into state courts, local policing, and criminal procedure.

What Is Incorporated Today (Mostly Yes, With Caveats)

Here is a practical guide to where incorporation stands now. Think of it as the constitutional floor that states cannot go below.

First Amendment

• Incorporated: Free exercise of religion, establishment limits, speech, press, assembly, petition.
• What still varies: States can have different time, place, and manner rules for protests, permitting regimes, and public forum policies, as long as they satisfy First Amendment doctrine.

Second Amendment

• Incorporated: Yes, through McDonald.
• What still varies: Licensing systems and weapon regulations differ by state, and modern cases about the scope of permissible regulation continue to evolve.

Third Amendment

• Incorporated: Commonly treated as effectively incorporated, but the Supreme Court has not squarely decided it in a headline case. Third Amendment litigation is rare because quartering soldiers is rare.

Fourth Amendment

• Incorporated: Yes, including core protections against unreasonable searches and seizures.
• What still varies: States can create additional protections under state constitutions. Also, remedies can look different at the margins, especially when federal good-faith doctrines and state procedural rules interact.

Fifth Amendment

• Incorporated: Many parts are incorporated, including protection against self-incrimination (Malloy), the Double Jeopardy Clause (Benton), and the Takings Clause.
• Not incorporated: The requirement of a grand jury indictment for federal felonies is not incorporated. States may use grand juries, but they are not constitutionally required to do so.

Sixth Amendment

• Incorporated: Speedy and public trial, impartial jury for serious crimes, notice of accusation, confrontation of witnesses, compulsory process, and the right to counsel in felony cases and any case that actually results in jail time.
• What still varies: States have room on administration: timelines, charging practices, and some jury mechanics. But major rules like jury unanimity in serious cases are now nationalized after Ramos v. Louisiana (2020).

Seventh Amendment

• Not incorporated: The right to a jury trial in civil cases in federal court is not required of the states. Many states do provide civil juries by state law or constitution, but it is not a federal constitutional mandate.

Eighth Amendment

• Incorporated: The Cruel and Unusual Punishments Clause applies to the states, and the Excessive Fines Clause is incorporated via Timbs.
• Treated as applicable: The Excessive Bail Clause is widely treated as applying to the states in modern doctrine and practice, even though it has not always been discussed in the same canonical “incorporation case” way as some other provisions.
• What still varies: Sentencing systems, bail practices, and fines differ widely. Incorporation sets the constitutional boundary, not a uniform national code.

Ninth and Tenth Amendments

• Different category: These are structural and interpretive. They are not typically “incorporated” in the same right-by-right way because they do not function as individual criminal procedure guarantees.

Partially Incorporated: When the Right Applies, But Not Every Detail

Incorporation can be more complicated than a yes or no.

Sometimes the Court incorporates the core of a right while allowing state procedure to differ from federal practice. The right exists, but the implementation can vary.

• Jury trial rules: The Constitution sets a baseline, but the Court has historically allowed differences in how states classify offenses as “petty” versus “serious,” and how they run the machinery around the right.
• Remedies and enforcement: Incorporation often answers what the right is, not always how it is enforced in every procedural corner. That is one reason criminal procedure doctrine fills entire casebooks.

Not Incorporated: The Two Big Holdouts

Two non-incorporated provisions matter so much that they deserve to be memorized, because they explain why state and federal prosecutions can feel like different worlds.

Grand jury indictment (Fifth Amendment)

In federal court, felonies generally require an indictment by a grand jury. In state court, prosecutors in many jurisdictions can proceed by “information,” typically after a preliminary hearing or other screening process.

This is not a loophole. It is a feature of American federalism that survived the incorporation era.

Civil jury trial (Seventh Amendment)

The Seventh Amendment protects civil jury trials in federal court for certain suits at common law. States are free to provide broader civil jury rights or narrow them, subject to their own constitutions and statutes.

Why State and Federal Prosecutions Still Differ

If most rights are incorporated, why does state criminal court still look and feel different than federal criminal court?

Because incorporation sets a constitutional minimum, not a uniform national criminal procedure code. Differences persist for several reasons.

1) Different charging systems

Federal felony prosecutions typically use grand juries. Many states do not have to. That changes leverage, speed, secrecy, and the early stages of discovery and litigation.

2) Different court rules and evidence codes

States run their own procedural systems, and they can be stricter than the federal baseline. A state constitution can give more privacy protection than the Fourth Amendment as interpreted by the Supreme Court. A state evidence rule can be more protective than the federal rule. Incorporation does not stop states from being more rights-protective.

3) Different remedies

The exclusionary rule is a constitutional remedy in many contexts after Mapp, but the modern doctrine includes exceptions like good faith. How aggressively a particular state court applies suppression rules can vary, especially when state constitutional law supplies independent protections.

4) Different policing realities

The Constitution is only part of what shapes outcomes. Resources, plea bargaining culture, public defender staffing, bail practices, and local enforcement norms can produce very different experiences even under the same incorporated rights.

5) The “dual sovereignty” reality

State and federal governments are separate sovereigns. That matters for prosecution decisions, cooperation, and occasionally for the sequence of cases. Incorporation tells states they must respect many federal constitutional rights. It does not erase the existence of parallel criminal systems.

Selective Incorporation’s Quiet Tradeoff

Selective incorporation did something profound. It made the Bill of Rights a daily reality for state defendants, state protesters, and state citizens. It nationalized the floor of freedom.

But it also shifted power toward the Supreme Court, because the Court became the institution that decides which rights are “fundamental,” how they apply, and what exceptions they tolerate.

That means incorporation is not merely a history lesson. It is an ongoing constitutional argument about who gets to define liberty: state constitutions, state legislatures, Congress, or nine justices interpreting a single phrase in the Fourteenth Amendment.

Quick Classroom Summary

• The Bill of Rights originally restrained only the federal government, confirmed in Barron v. Baltimore (1833).
• After the Civil War, the Fourteenth Amendment created a constitutional pathway to apply rights against the states.
• The Supreme Court chose selective incorporation, applying most protections through the Due Process Clause, one right at a time.
• Most of the First, Fourth, Fifth, Sixth, and Eighth Amendments are incorporated, with a few clauses treated as applicable in practice even when the Court has not framed them through a single famous incorporation holding.
• The big holdouts are the Fifth Amendment grand jury indictment requirement for federal felonies and the Seventh Amendment civil jury right.
• Even with incorporation, state and federal prosecutions differ because procedure, remedies, resources, and state constitutional protections vary.

The Question Incorporation Leaves You With

Selective incorporation asks you to accept something that sounds paradoxical: the Bill of Rights is both national and not fully national.

It is national because a state cannot ignore core freedoms of speech, counsel, confrontation, or protection from unreasonable searches.

It is not fully national because states still design many of the moving parts, and in a few crucial places the Bill of Rights never became a binding rule for them at all.

That tension is not a bug. It is what it looks like when a federal Constitution tries to protect individual liberty while still allowing fifty separate legal systems to exist.