5.3: Incorporation

The beginning of the First Amendment (“Congress shall make no law...”) reveals that the Anti-Federalists were mainly concerned about national government overreach. State governments, being less powerful and constrained by their own constitutions, were regarded as less of a threat. Therefore, the Founders saw no need to constrain state governments in the same way. 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 that no state could “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 obligated the states to respect the rights articulated in the Bill of Rights, which, as part of the Constitution, was among the laws whose equal protection every American was guaranteed.

Despite this change, the protections in the Bill of Rights did not apply to the states immediately. Instead, they were gradually imposed 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 incorporation 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 of unanimous verdicts for criminal convictions in jury trials. (The Sixth Amendment does not state this requirement outright, but the court ruled that it was implied based on the Founders’ understanding of trials by jury.) Some rights in the Bill of Rights have yet to be incorporated, but the Supreme Court could decide to incorporate them in the future if a relevant case comes up.