Incorporation of the Bill of Rights

The Bill of Rights has long been held as an important protection for the people from the government. In its original state, it protected the people from the federal government and not the government of their respective state. The Bill of Rights was made applicable to state governments through the process of incorporation.

Incorporation is the legal doctrine that has made portions of the Bill of Rights applicable to the states. It has, frequently, relied on the 14th Amendment’s “due process” clause to make the first 8 amendments applicable to the states. Many individuals feel that the Privileges and Immunities clause (Article IV, Section 2, Clause 1) would be a more appropriate way of incorporating rights; however, the Supreme Court has stuck with the 14th Amendment.

Prior to the development of the incorporation doctrine and the ratification of the 14th Amendment, the Supreme Court ruled in Barron v. Mayor of Baltimore (1833) that the Bill of Rights did not restrict the state governments. While that case mainly dealt with the 5th Amendment’s prohibition of denying an individual private property for public use without just compensation, the Supreme Court, lead by Chief Justice John Marshall, ruled that the Bill of Rights in general was applicable only to the federal government. This way of thinking remained in place until the late 1920s.

In the 20th century, the Supreme Court had a change of mindset and started ruling that portions of the Bill of Rights were applicable to states. This started in 1925 with Gitlow v. New York. In this case, states were bound to observe the 1st Amendment’s guarantee of freedom of speech. While this case is seen as the start of the incorporation doctrine, it wasn’t until the 1940s that things really got rolling. The Warren Court of the 1960s was responsible for incorporating the majority of procedural protections provided to criminal defendants. The Warren Court brought state standards in line with federal requirements. The incorporation doctrine as a whole applies both procedural and substantive guarantees to the states.

While the Supreme Court has addressed many portions of the Bill of Rights, there are many provisions that the Supreme Court has either refused to incorporate or not yet incorporated. If the provision has not yet been incorporated, this is most likely due to a case not having come before the court. So far, the Second Amendment (right to bear arms), Fifth Amendement (right to an indictment by a grand jury), Seventh Amendment (right to a jury trial in civil lawsuits), and Sixth Amendment (a criminal jury can consist of only 12 members and must reach a unanimous verdict in order to convict) have not been incorporated.