5.2: Incorporation

The beginning of the First Amendment (“Congress shall make no law...”) reveals that the Anti-Federalists were specifically concerned about the dangers of the national government. State governments, being less powerful and constrained by their own constitutions, were regarded as less of a threat to liberty. Therefore, the Founders saw no need to subject state governments to the restrictions in the Bill of Rights. The 1833 Supreme Court case Barron v. Baltimore, in which a wharf owner unsuccessfully sued the city for violating his Fifth Amendment right to just compensation for government-seized property, confirmed that the states were not bound by the Bill of Rights.

The national-only nature of the Bill of Rights changed in 1868 with the ratification of the Fourteenth Amendment, which declared, “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” This stipulation obligated the states to respect the rights articulated in the Bill of Rights, which, as part of the Constitution, was included among the laws whose equal protection every American was now guaranteed.

Despite this change, the protections in the Bill of Rights did not apply to the states immediately. Instead, they gradually began to be imposed on the states one right at a time through a process called incorporation. When the Supreme Court hears a case involving a state violating a constitutional right, it can choose to “incorporate” that right against the states. Once a right has been incorporated, states no longer have the authority to deny their citizens that right.

The Supreme Court began using the incorporation process in the 1897 case Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, when it incorporated the Fifth Amendment right to just compensation (the same right that was at the center of Barron v. Baltimore). Most recently, the 2020 case Ramos v. Louisiana incorporated the Sixth Amendment requirement that jury verdicts in criminal trials must be unanimous. (This requirement is not stated outright in the Sixth Amendment, but the court ruled that it was implied based on what the Founders would have understood “trial by jury” to mean at the time when the amendment was written.) Some rights in the Bill of Rights still have not been incorporated, but the Supreme Court could decide to incorporate them in the future if a relevant case was brought to it.