What Incorporation Did to the Bill of Rights

Updated: November 10, 2026

Incorporation changed which governments the Bill of Rights restrains. The first 10 amendments were ratified in 1791 as limits on the federal government; through the Fourteenth Amendment, the Supreme Court later made most of their protections enforceable against state and local governments too.

The change came through court decisions, not a single amendment or ruling that applied every clause at once. Today, whether a particular guarantee binds a state depends on the Supreme Court’s treatment of that right and on whether government action is involved.

• 10 amendments make up the Bill of Rights, ratified in 1791
• 1865 is the year the Thirteenth Amendment was ratified; the Fourteenth Amendment followed in 1868
• 1833 is the year Barron v. City of Baltimore confirmed the federal-only rule for the Bill of Rights

What did incorporation do to the Bill of Rights?

Incorporation made particular protections in the first 10 amendments binding on state governments through the Fourteenth Amendment’s Due Process Clause. A person challenging a state law or the conduct of a state or local official can therefore invoke an incorporated guarantee, subject to the rules that govern that specific right.

What incorporation changes—and what it does not

It changes the government against which a protection can be enforced. It does not replace the original amendment, create a new list of rights, or make every clause automatically applicable to states. The Supreme Court has incorporated most, but not all, of the Bill of Rights; the exact status of a provision should be checked in the relevant Supreme Court decisions and the Constitution Annotated maintained by Congress.

Nor does incorporation turn every dispute between private people or companies into a constitutional case. The Bill of Rights ordinarily restrains government action. A private employer’s decision, for example, is not automatically a First Amendment violation simply because it affects speech; the facts must establish the required connection to government action.

Why did the Fourteenth Amendment become the route to state enforcement?

The Constitution originally restricted the federal government through the Bill of Rights, ratified in 1791. In Barron v. City of Baltimore (1833), the Supreme Court held that the Fifth Amendment’s Takings Clause did not apply to Baltimore. The decision gave a clear answer to the dispute before the Court: the Bill of Rights did not generally bind state governments.

From postwar amendments to incorporation

After the Civil War, the Thirteenth Amendment abolished slavery in 1865. The Fourteenth Amendment, ratified in 1868, prohibited states from depriving people of “life, liberty, or property, without due process of law.” Later Supreme Court decisions used that Due Process Clause to apply specific Bill of Rights guarantees to states.

The Fourteenth Amendment contains other important provisions, including its Equal Protection Clause, but incorporation is principally associated with Due Process. The clauses are not interchangeable: a claim about unequal treatment may raise Equal Protection questions, while incorporation asks whether a particular Bill of Rights protection constrains state action through due process.

How did the Supreme Court apply the rights to states?

A provision-by-provision process

The Court considered guarantees in separate cases rather than issuing one decision that applied all 10 amendments to the states. In Gitlow v. New York (1925), it treated freedom of speech as protected from state infringement through the Fourteenth Amendment. In Near v. Minnesota (1931), it applied the First Amendment’s press protection to state action.

Other landmark decisions followed. Mapp v. Ohio (1961) applied the Fourth Amendment exclusionary rule to the states, limiting the use in state prosecutions of evidence obtained through unconstitutional searches. Gideon v. Wainwright (1963) required states to provide counsel to indigent defendants charged with serious crimes, applying the Sixth Amendment right to counsel.

These cases show why the distinction matters in practice: an incorporated right constrains state and local authorities as well as federal officials. The specific rule can still depend on the right and the facts—for example, the question in a search case may include whether police conduct was unreasonable under the Fourth Amendment.

Why was incorporation selective rather than automatic?

The Court developed incorporation one guarantee at a time because the legal question was whether a particular protection constrained state action under the Fourteenth Amendment. Barron had established the earlier federal-only rule; later cases addressed which specific rights could be enforced against states. The Court did not treat the first 10 amendments as one indivisible package.

In Palko v. Connecticut (1937), the Court described the test in terms of rights fundamental to the American scheme of justice. In McDonald v. Chicago (2010), the Court held that the Second Amendment right to keep and bear arms applies to state and local governments. The language and formulation of the test have developed, but the practical method remains case-based: look at the relevant right and the controlling decisions.

Why the distinction matters

A ruling about one guarantee does not answer every question about another. Incorporation of the First Amendment’s speech protections, for instance, does not itself decide the scope of the Sixth Amendment’s counsel guarantee. For a current dispute, check the constitutional provision, the Supreme Court case applying it to states, and any later decision that explains its limits.

What are incorporation’s limits and common misconceptions?

Incorporation is not a blanket rule for private conduct, and it does not mean every provision in the Bill of Rights applies to states in precisely the same form. It makes particular protections enforceable against government actors. A claim may still fail because the defendant is not acting for the government, because the conduct falls outside the right, or because the facts do not meet the applicable legal standard.

How incorporation works—and where it stops

The constitutional route is the Fourteenth Amendment’s Due Process Clause; the protected right remains in the original amendment. Most Bill of Rights protections have been incorporated, but some provisions have not been applied to the states. One example is the Fifth Amendment requirement for a grand-jury indictment in federal felony cases: the Supreme Court has not incorporated that requirement against the states.

Do not assume that a state’s rules must match every federal procedure simply because both systems are subject to incorporated rights. Incorporation sets constitutional floors; states may offer additional protections under their own constitutions or laws. To assess a particular rule, compare the relevant Supreme Court standard with the state constitution and statute, rather than relying on the word “incorporated” alone.

What changed for constitutional rights after incorporation?

Before incorporation, a person generally could not rely on the Bill of Rights itself to challenge state action; Barron illustrates that rule. After the Court incorporated a guarantee, a person could invoke it against state and local officials as well as federal officials. That change brought constitutional limits into state criminal cases, policing and regulation.

The rights still come from the amendments ratified in 1791. The Fourteenth Amendment, ratified in 1868, supplies the route for applying most of those protections to states. The Supreme Court’s decisions define which guarantees apply and how they operate, so the result is broader reach without a single, uniform rule for every clause.

Selective, not all at once

The difference between the right and its route of enforcement is useful when reading a case: identify the Bill of Rights provision, then identify the Fourteenth Amendment decision that makes it applicable to state action. If the claim concerns a provision whose incorporation status is disputed or unsettled, check the Supreme Court’s latest ruling and the case’s specific facts.

Questions readers ask

Key takeaways

• The Bill of Rights contains 10 amendments ratified in 1791 and originally constrained the federal government.
• The Fourteenth Amendment, ratified in 1868, became the principal route for applying Bill of Rights protections to states.
• Barron v. City of Baltimore (1833) reflects the earlier federal-only rule.
• Incorporation developed through separate Supreme Court decisions, including Mapp (1961) and Gideon (1963).
• Most, but not all, protections apply to states; incorporation concerns government action, not private conduct in general.