Incorporation, or How the Bill of Rights Came to Bind the States

In 1919, a New York socialist named Benjamin Gitlow helped publish a pamphlet called the Left Wing Manifesto, a long, dense argument for mass strikes and the overthrow of the existing order. It was not much read. Police arrested him anyway under a New York law against "criminal anarchy," passed in 1902 after an anarchist assassinated President William McKinley. Gitlow was convicted, and his case reached the Supreme Court, which ruled against him in 1925. On its face, it was a defeat for free speech. But buried in the majority's opinion was a single sentence that changed American law more than the outcome did. The justices said they would "assume" that freedom of speech and of the press were among the liberties protected by the Fourteenth Amendment from impairment by the states. Gitlow lost his appeal. Everyone else gained a principle.

In short: The Bill of Rights was written to restrain only the federal government, and for most of the nineteenth century it did nothing to stop states from censoring, searching or jailing people. After the Fourteenth Amendment, the Supreme Court slowly applied most of those rights to the states one at a time, a process called incorporation that began in earnest with Gitlow v. New York in 1925 and is still not entirely finished.

A Bill of Rights for one government only

Start with the text of the First Amendment: "Congress shall make no law." Congress, not Virginia or Massachusetts. When James Madison drafted the amendments that became the Bill of Rights, he actually proposed one that would have barred states from violating the rights of conscience, freedom of the press and trial by jury. He thought it might be the most valuable on the list. The Senate removed it.

So when the question finally reached the Supreme Court, the answer was predictable. In Barron v. Baltimore, decided in 1833, a wharf owner named John Barron complained that the city of Baltimore had ruined his business by diverting streams and piling silt around his wharf, and that this was a taking of property without just compensation under the Fifth Amendment. Chief Justice John Marshall, writing for the Court, held that the Bill of Rights limited the federal government alone. Barron had no federal claim against his city.

That was the law of the land for decades. States could establish churches, and Massachusetts kept a form of state-supported religion until 1833. States could censor abolitionist literature, and Southern states did, making it a crime to circulate antislavery writing. The protections most Americans now think of as their birthright were, for most of the country's first century, promises from Washington about Washington.

The amendment written to change that

The Civil War changed the question. Congress and the states ratified the Fourteenth Amendment in 1868, and its first section speaks directly to the states. No state shall abridge the privileges or immunities of citizens of the United States. No state shall deprive any person of life, liberty or property without due process of law. No state shall deny any person the equal protection of the laws.

Many of the amendment's framers said plainly that they wanted it to make the Bill of Rights binding on the states. Representative John Bingham of Ohio, the principal author of the first section, made that case in congressional debate, and Senator Jacob Howard said much the same thing when he introduced the amendment in the Senate. They had watched Southern states deny freed people and their white allies the right to speak, assemble, carry arms and receive fair trials, and they meant to stop it.

The most natural home for that idea was the privileges or immunities clause. But in the Slaughter-House Cases of 1873, a dispute over a New Orleans slaughterhouse monopoly, a narrow majority of the Supreme Court read that clause so restrictively that it protected almost nothing: a short list of rights of national citizenship, like access to seaports and federal offices. Scholars across the political spectrum, from progressive historians to conservative originalists, now widely regard that reading as a mistake. It closed the front door.

Through the side door of due process

What remained was the due process clause, which guarantees that no state will deprive anyone of liberty without due process of law. At first glance, "process" sounds like procedure: notice, a hearing, a fair judge. Over time, though, the Court came to read "liberty" as having substantive content, a set of freedoms so fundamental that no fair procedure could justify taking them away.

The earliest application was to property, which suited a Court then friendly to business. In 1897, in a case brought by the Chicago, Burlington and Quincy Railroad, the Court held that states must pay just compensation when they take private property, the very claim John Barron had lost decades earlier.

Then came Gitlow. Its sentence assuming that speech and press were protected against the states was not much more than a nod, and the Court upheld his conviction because it thought New York could punish speech advocating violent overthrow. Justice Oliver Wendell Holmes, joined by Justice Louis Brandeis, dissented, arguing that the manifesto posed no present danger of anything. Within a few years the assumption became a holding. In Near v. Minnesota, in 1931, the Court struck down a Minnesota law that let judges shut down "malicious, scandalous and defamatory" newspapers as a public nuisance. The target in that case was a Minneapolis scandal sheet run by a man named Jay Near, whose paper was openly bigoted. The principle that protected him has protected every reporter since: the government generally may not stop publication in advance.

There is a pattern worth noticing. The people whose cases built the modern Bill of Rights were often not sympathetic. Gitlow was a revolutionary. Near was a bigot. Later cases would involve people accused of serious crimes. Rights get defined at the edges, by people the majority would rather not defend.

A coda on Gitlow himself: New York Governor Al Smith pardoned him in 1925, the same year the Court ruled against him.

Selective, one right at a time

How should courts decide which rights the Fourteenth Amendment carried? In 1937, in Palko v. Connecticut, Justice Benjamin Cardozo offered a test that dominated for a generation. Some rights, he wrote, are so fundamental that they are "implicit in the concept of ordered liberty," and those bind the states. Others, while valuable, are not. In Palko's own case, the Court decided that protection against double jeopardy did not make the cut, and Connecticut was allowed to retry a man and win a death sentence after an earlier conviction for a lesser crime.

Justice Hugo Black thought this approach let judges pick their favorite rights. In a 1947 dissent in Adamson v. California, he argued for total incorporation: the Fourteenth Amendment applied the entire Bill of Rights to the states, no more and no less. He never won a majority for the theory. But he won most of the war, because in the 1960s the Warren Court incorporated right after right, using a version of Cardozo's test that, in practice, approached Black's result.

The list from that decade is the core of modern criminal procedure:

• Mapp v. Ohio, 1961: evidence from an illegal search cannot be used in state court.
• Gideon v. Wainwright, 1963: states must provide a lawyer to people charged with serious crimes who cannot afford one.
• Malloy v. Hogan, 1964: the privilege against self-incrimination applies in state proceedings.
• Duncan v. Louisiana, 1968: the right to a jury trial in serious criminal cases binds the states.
• Benton v. Maryland, 1969: double jeopardy protection applies to the states, expressly overruling Palko.

Clarence Earl Gideon's story belongs here. A Florida drifter charged with breaking into a pool hall, he asked for a lawyer, was told the state did not have to give him one, and wrote his petition to the Supreme Court by hand in pencil from prison. The Court agreed with him unanimously. At his retrial, with a lawyer, he was acquitted.

Unfinished business, in both directions

Incorporation did not stop with the Warren Court, and it has not been a project of only one ideology. In McDonald v. Chicago, in 2010, the Court held that the Second Amendment right recognized two years earlier in District of Columbia v. Heller applies to states and cities. Progressives who celebrate Gideon should understand that conservatives see McDonald in the same light: as the Fourteenth Amendment doing what its framers intended, including protecting the right of freed Black people to defend their homes in the Reconstruction South.

In Timbs v. Indiana, in 2019, a unanimous Court applied the Eighth Amendment's ban on excessive fines to the states. The case involved a man whose Land Rover was seized after a small drug sale, and it matters greatly to anyone concerned about civil forfeiture and court fines that fall hardest on poor people. In Ramos v. Louisiana, in 2020, the Court held that the Sixth Amendment requires unanimous juries in state criminal trials for serious offenses, ending a practice in Louisiana and Oregon that had roots in efforts to dilute the votes of Black jurors.

A few provisions remain unincorporated. The Fifth Amendment's requirement of a grand jury indictment does not bind the states, under a nineteenth-century decision, so many states charge serious crimes through a prosecutor's filing instead. The Seventh Amendment's right to a civil jury does not apply to the states either. The Third Amendment, on quartering soldiers, has never been squarely decided by the Supreme Court, for reasons that need no explanation.

Why the mechanism matters now

Here is the argument, and it is an argument. Incorporation is one of the most important things the federal courts have done for ordinary people, and progressives should defend it as a whole rather than treating it as a menu.

Most encounters between Americans and government are with state and local government: the police officer at the traffic stop, the county prosecutor, the city council regulating a protest, the public school. If the Bill of Rights stopped at the federal level, the right to speak, to worship, to be free of unreasonable searches and to have a lawyer would be only as strong as each state legislature chose to make it. Some states would be generous. History suggests others would not.

The strongest critique of incorporation comes from two places. Some conservatives argue that it hands too much power to federal judges and erodes the ability of states to experiment. Some scholars on the left and right argue that the due process clause is an awkward vehicle and that the privileges or immunities clause should be revived instead. Both critiques have serious defenders. But neither offers a compelling reason to give back the protections themselves. Federalism has real value for policy experiments, like a state minimum wage or a clean energy standard. It has much less value as a way to let a state decide whether you get a lawyer.

There is also a lesson about consistency. A movement that wants the courts to apply rights to the states when the right is a free press or a fair trial should be careful about arguments that would undercut the same mechanism when the right is one it likes less. The Fourteenth Amendment does not come in partisan flavors, and the most durable defense of civil liberties is the one that holds when the other side is the one invoking them.

The floor, and the second floor above it

Incorporation sets a floor. It does not set a ceiling, and that distinction became important in the 1970s, when the Supreme Court grew more conservative and less willing to expand the protections the Warren Court had recognized.

In 1977, Justice William Brennan, one of the architects of the Warren Court's incorporation decisions, published an article in the Harvard Law Review urging state judges to look to their own constitutions. State courts, he argued, were free to read state bills of rights more generously than the Supreme Court read the federal one, and when they did so on clearly independent state grounds, the Supreme Court could not overrule them. It was an unusual message from a sitting justice: if my Court will not protect you, try your own.

Many state courts took up the invitation. Some have read their state constitutions to give stronger protection against searches, broader rights to free expression in certain public spaces or explicit rights to privacy that the federal Constitution does not mention. In the years since 2022, state constitutions have also become central to fights over abortion and voting.

The result is a two-story building. The ground floor, built by incorporation, is the same in every state. Above it, each state can add more, and the additions vary widely. A reader who knows only the federal rules knows the minimum. Knowing what your own state adds is often the difference between a right you have and a right you assume you have.

What you can do

Rights that bind the states are enforced, day to day, by state and local decisions. That puts a lot of them within reach.

1. Track the Court's rulings. The court watch page lists this term's Supreme Court opinions with the Court's own summaries and the emergency docket, so you can see which constitutional questions are moving.
2. Follow press freedom fights. The free speech and press topic page collects current reporting on prior restraint, protest rules and pressure on journalists, the modern versions of Near and Gitlow.
3. Support public defense and legal aid. Gideon promised a lawyer, but public defender offices in many places are badly underfunded. The organizations directory lists legal aid, civil rights and justice reform groups in every state.
4. Ask your state legislators specific questions. Your state lawmakers and members of Congress decide funding for public defense, rules on civil forfeiture and protest permits. Ask where they stand on those three, by name.
5. Read your state constitution. Many state constitutions protect speech, privacy or searches more broadly than the federal one. Knowing what yours says is the first step toward using it.

Benjamin Gitlow went to prison for a pamphlet almost nobody read. The sentence the Court wrote about his case now protects people who will never hear his name.