Incorporation made most of the Bill of Rights enforceable against state governments, not just the federal government. Through the Fourteenth Amendment, courts applied many of its protections to the states, changing who those constitutional limits bind while leaving the rights themselves rooted in the original amendments.
That shift reshaped the practical reach of the Bill of Rights: state and local laws, as well as federal actions, could be challenged under many of the same protections. This article explains how incorporation developed, what it changed, and why the process did not make every provision apply to the states in the same way.
| Question | Before incorporation | Under incorporation |
|---|---|---|
| Government constrained | Federal government | Federal and state governments for incorporated protections |
| Constitutional route | The original Bill of Rights | Fourteenth Amendment Due Process Clause |
| How protections extend | No general application to states | Supreme Court decisions apply protections selectively |
| Key reference | Barron v. City of Baltimore (1833) | A series of Supreme Court incorporation cases |
- 10 amendments The Bill of Rights’ first ten amendments
- 1791 Year the Bill of Rights was ratified
- 1833 Year of Barron v. City of Baltimore
- 1865 Year of the Thirteenth Amendment, at the start of the post–Civil War constitutional changes
What did incorporation do to the Bill of Rights?
Incorporation made portions of the first ten amendments—the Bill of Rights—apply to state governments through the Due Process Clause of the Fourteenth Amendment, rather than limiting those protections to the federal government. The Fourteenth Amendment, adopted after the Civil War, provided the constitutional route for that change.
What incorporation changes—and what it does not
The Supreme Court developed incorporation through decisions applying particular Bill of Rights protections to the states one at a time. This selective process means a protection applies to state action only when the Court has incorporated it; incorporation did not automatically extend every provision of the first ten amendments.
Incorporation matters when a state or local government is involved—for example, when a person challenges government conduct under an incorporated protection. It does not, by itself, turn a disagreement between private parties into a constitutional case: the doctrine extends protections against government action, not a general constitutional rule for every private dispute.
Why did the Fourteenth Amendment become the route to state enforcement?
The Fourteenth Amendment became the route to state enforcement because its Due Process Clause gave the Supreme Court a constitutional basis for applying specified Bill of Rights protections to state governments. Before that shift, the Bill of Rights, ratified in 1791, was understood to restrict the federal government, not the states.
Barron v. City of Baltimore (1833) reflected that boundary: the Supreme Court treated the Bill of Rights as inapplicable to state action. The ruling left state governments outside those federal protections, even as the amendments constrained the national government.
From postwar amendments to incorporation
The constitutional changes after the Civil War began with the Thirteenth Amendment in 1865; the Fourteenth Amendment later supplied the Due Process Clause used for incorporation. Through later cases, the Supreme Court applied particular Bill of Rights protections to the states under that clause. The result was a constitutional path for enforcing specified federal rights against state action, rather than an automatic extension of every protection in the Bill of Rights.
How did the Supreme Court apply the rights to states?
A provision-by-provision process
The Supreme Court applied the Bill of Rights to state governments through a series of decisions, considering each protection separately under the Fourteenth Amendment’s Due Process Clause. Rather than issue one ruling extending all ten amendments to the states, the Court developed the doctrine known as selective incorporation.
The process began after the Civil War, when the Fourteenth Amendment added the Due Process Clause to the Constitution. In each incorporation case, the Court addressed whether a particular Bill of Rights protection applied to state governments through that clause. The result was selective: protections were considered individually, not treated as a single package.
Once the Court incorporates a protection, that constitutional guarantee constrains state governments as well as the federal government. The distinction matters because the Bill of Rights initially limited federal action; incorporation made the particular protection at issue applicable at both levels of government, without automatically incorporating every other protection.
Why was incorporation selective rather than automatic?
Selective incorporation was case by case because the Fourteenth Amendment asks whether a particular Bill of Rights protection applies to state action, not whether all ten amendments should become binding on states as a single package. That approach followed the earlier rule that the Bill of Rights restricted the federal government, not the states; the Supreme Court’s 1833 decision in Barron v. City of Baltimore is a concrete marker of that distinction.
The Fourteenth Amendment’s Due Process Clause became the route for assessing each protection separately. The Court’s decisions therefore distinguish incorporated guarantees, which apply to state governments as well as the federal government, from provisions not incorporated through that process; selective incorporation does not treat the first ten amendments as an indivisible set.
Why the distinction matters
Selective incorporation makes Supreme Court rulings central to defining how far a constitutional protection reaches across state and federal governments. A decision about one guarantee answers a narrower question than a blanket rule covering all ten amendments: whether that specific protection binds state action under the Fourteenth Amendment. The case-by-case method preserves that distinction as the Court determines the reach of individual rights.
What are incorporation’s limits and common misconceptions?
Incorporation does not make every provision of the first ten amendments automatically binding on state governments, and it is not a general rule for every act by a private person or organisation. The doctrine concerns state action: it is the route by which particular Bill of Rights protections apply to state governments, rather than a blanket limit on private conduct.
How incorporation works—and where it stops
The legal route is the Fourteenth Amendment’s Due Process Clause, not a rewriting of the original Bill of Rights. The first ten amendments were initially treated as restrictions on the federal government; incorporation later made some of their protections applicable to states through the Fourteenth Amendment.
Whether a particular protection applies to state governments depends on the Supreme Court’s treatment of that provision. Incorporation is selective and proceeds provision by provision, so it is inaccurate to assume that all ten amendments—or every clause within them—automatically binds the states. The key distinctions are the government actor involved and the Court’s treatment of the specific protection at issue.
What changed for constitutional rights after incorporation?
Incorporation changed the Bill of Rights from a limit on federal power alone into a set of protections that also constrain state governments when a particular right is applied to them. Before incorporation, the Supreme Court’s 1833 decision in Barron v. City of Baltimore illustrated the narrower understanding: the Bill of Rights did not generally restrict state action.
The constitutional link is between the first ten amendments, ratified in 1791, and the Fourteenth Amendment’s Due Process Clause. Through that clause, the Supreme Court has applied particular Bill of Rights protections to the states; once a protection is incorporated, state governments must observe it as well as the federal government.
Selective, not all at once
Incorporation is selective: the Bill of Rights is not treated as one indivisible package automatically imposed on the states. Instead, particular protections are applied through the Fourteenth Amendment, so the scope of state obligations depends on which right is at issue. The result is a constitutional framework in which the 1791 amendments remain the source of the protections, while the Fourteenth Amendment provides the route for applying incorporated protections to state governments.
Questions readers ask
What does incorporation mean in constitutional law?
Did the Bill of Rights originally apply to the states?
Why is incorporation called selective?
Does incorporation apply to private conduct?
Key takeaways
- Incorporation applies portions of the first ten amendments to state governments.
- The Fourteenth Amendment’s Due Process Clause is the constitutional route.
- Barron v. City of Baltimore (1833) reflects the original federal-only understanding.
- Selective incorporation proceeds provision by provision through Supreme Court cases.
- The process began in the post–Civil War constitutional era, following the Thirteenth Amendment of 1865.
Sources
- LII / Legal Information Institute — “incorporation doctrine | Wex | US Law”
- billofrightsinstitute.org — “How does the 14th amendment work”
- Library of Congress — “Application of the Bill of Rights to the States Through the Fourteenth Amendment and Selective Incorporation | Constitution Annotated | Congress.gov”
- Supreme Court Historical Society — “Selective Incorporation”
