Info Brief: A Short Introduction to Incorporation

Today, the Bill of Rights represents a charter of national freedom—protecting us from abuses by both the national government and our state governments. But for much of American history, the Bill of Rights didn’t play the central role that it plays today—either at the Supreme Court or in the American public imagination. When it was added to the Constitution in 1791, its protections applied only to the national government, not to state and local governments.

For example, this meant that the national government could not restrict someone’s free speech, but that a state government could. And many Southern states did violate core Bill of Rights protections like free speech rights throughout the pre-Civil War period—for instance, banning abolitionist speech.

But today, the Bill of Rights applies to both the national government and to state governments. What changed?: The ratification of the Fourteenth Amendment, landmark Supreme Court cases in the twentieth century, and the introduction of the idea of incorporation—the process of applying key Bill of Rights protections against state abuses.

Who can we thank for this transformation? Above all, we can thank the Reconstruction Republicans—who rebuilt America after the Civil War—and, most notably, Ohio Representative John Bingham.

Who is this forgotten American Founder, and why should we care about him?

Decades after his death, Justice Hugo Black would described Bingham as the James Madison of the Fourteenth Amendment—and so he was. Ratified after the Civil War, the Fourteenth Amendment wrote the Declaration of Independence’s promise of freedom and equality into the U.S. Constitution.

Through the Fourteenth Amendment, Bingham and many of his fellow Fourteenth Amendment Framers sought to protect the American people, in part, from state abuses of key Bill of Rights protections like religious liberty and free speech.

Incorporation is one of the most important topics in constitutional law and is a key reason why so many scholars refer to the Reconstruction Amendments—including the Fourteenth Amendment—as a key part of America’s “Second Founding.”

At first, in the years shortly after the ratification of the Fourteenth Amendment, the Supreme Court chose not to incorporate key Bill of Rights protections against the states. These decisions continued to limit the Bill of Rights to abuses by the national government for decades. However, in the twentieth century, the Supreme Court began to reinvigorate Bingham’s vision and apply key Bill of Rights protections to the states—a process that lawyers call "selective incorporation.”

During this period, the Court applied key Bill of Rights protections like free speech and religious liberty to the states on a case-by-case basis—one constitutional right at a time. It was a long process, but, beginning in the early 1960s, the Court would move to incorporate most of the provisions of the Bill of Rights against the states.

Again, the Court went clause-by-clause. And once a clause was deemed “fundamental,” the Court eventually applied it against the states in every aspect.

It’s possible to trace the incorporation story back to 1897 and the case of Chicago, Burlington, and Quincy Railroad v. City of Chicago. However, scholars usually argue that the Court really began the process in Gitlow v. New York in 1925. There, the Court applied the First Amendment’s protections of free speech and a free press against the states. Interestingly, Benjamin Gitlow actually lost his case. But the Court would use Gitlow to build the legal framework for incorporation in a series of Fourteenth Amendment rulings that would strike down state laws on free speech, free press, and freedom of assembly grounds.

From there, the Court would move quickly to incorporate the protections for religious freedom enshrined in the First Amendment, including those contained in the Free Exercise Clause (Cantwell v. Connecticut in 1940) and in the Establishment Clause (Everson v. Board of Education in 1947). At the same time, in the early years, the Court also decided that (1) certain Bill of Rights protections didn’t apply against the states in full (e.g., the Fifth Amendment’s protection against double jeopardy.); and (2) that other protections shouldn’t be incorporated at all (e.g., the Fifth Amendment’s grand jury right).

However, with the Warren Court Revolution, the Court would move aggressively to incorporate most of the remaining provisions of the Bill of Rights, beginning in the early 1960s. Justice Hugo Black was the driving force behind this transformational move. Again, the Court pursued the path of selective incorporation—proceeding clause-by-clause and case-by-case.

However, the Warren Court did more than just incorporate many of the remaining provisions of the Bill of Rights. It also further strengthened the level of constitutional protection offered by many of the provisions that had already been incorporated. This is especially true of the protections offered by the First Amendment, including free speech and a free press (in cases like New York Times v. Sullivan and Brandenburg v. Ohio) and religious liberty (in cases like Engel v. Vitale and Sherbert v. Verner). The Warren Court also increased protections for those accused of a crime, including the protections offered by the Fourth Amendment (in cases like Mapp v. Ohio and Terry v. Ohio), the Fifth Amendment (in cases like Miranda v. Arizona), and the Sixth Amendment (like Gideon v. Wainwright).

By the end of this incorporation revolution, the Court had used various provisions of the Bill of Rights to strike down many state and local practices in a number of different contexts. Never before had the Court been so active in protecting freedom. During this period, the Bill of Rights truly became a charter of national freedom.

Today, virtually all of the provisions of the Bill of Rights have come to apply with equal force against abuses by state and local government. And this process remains ongoing through today.

For instance, over the last few years, the Court has incorporated the Sixth Amendment’s right to a unanimous jury verdict in Ramos v. Louisiana (2020) and the Eighth Amendment’s protection against excessive fines in Timbs v. Indiana (2019). Today, there are only a few rights that the Court still hasn’t applied to the states—the Third Amendment (quartering of troops), the Fifth Amendment’s grand jury right, and the Seventh Amendment’s civil jury right.

In the end, the Court continues to use the Fourteenth Amendment’s Due Process Clause in these cases. But it’s important not to get tripped up by legal jargon and technicalities. Just remember the big idea: Through incorporation, the Fourteenth Amendment applies key Bill of Rights protections (like free speech and religious liberty) to abuses by state governments. With incorporation, the Bill of Rights became a powerful charter of national freedom—applying to abuses by all levels of government: national, state, and local.