The piece summarizes the doctrinal origin, the major Supreme Court decisions that incorporated specific rights, the tests courts use to decide new claims, and practical effects on state law and criminal procedure. Read on for concise explanations and pointers to primary opinions.
What the phrase “bill of rights and 14th amendment” means: a concise definition
The phrase bill of rights and 14th amendment refers to how many individual protections in the Bill of Rights are applied to state governments through the Fourteenth Amendment. In practice this uses a judicial doctrine called selective incorporation, which treats each right separately to decide whether it is fundamental enough to restrict state action.
Selective incorporation rests on the Fourteenth Amendment’s Due Process Clause and a rights-by-rights approach rather than a blanket transfer of the entire Bill of Rights to the states. This distinction is central to modern constitutional law and explains why some federal protections clearly bind the states while others have been the subject of ongoing litigation. For a concise overview of the doctrine, see the Selective Incorporation entry at the Supreme Court Historical Society: Selective Incorporation.
When legal history traces the doctrine back to a single early decision, it points to a 1925 opinion in which the Supreme Court began treating certain First Amendment protections as among those that could limit state power, a development that laid the groundwork for later incorporation rulings Gitlow v. New York opinion
Plain-language definition
In plain terms, selective incorporation asks whether a specific constitutional right is so fundamental that the states cannot deny it. If the Court says yes, that right becomes enforceable in state courts and against state and local governments. The focus is on individual protections, not on moving the whole Bill of Rights into state law at once.
Many readers find it useful to consult a site’s collection of related materials; Michael Carbonara maintains a hub on constitutional rights that aggregates related posts and references.
Why the Fourteenth Amendment matters for states
The Fourteenth Amendment matters because it contains a Due Process Clause that federal courts have used as the constitutional vehicle for applying many federal rights to the states. That Clause has been read to protect certain liberties from state interference in the same way the Bill of Rights protects them from the federal government.
How selective incorporation differs from total incorporation
Selective incorporation differs from total incorporation in that it evaluates protections case by case. Total incorporation would treat the Bill of Rights as automatically binding on the states in full. Selective incorporation, by contrast, evaluates whether each specific right is fundamental and deeply rooted enough to be applied against state power.
Origins: how selective incorporation began under the Fourteenth Amendment
Gitlow v. New York and the 1920s context
The doctrine commonly credited with starting selective incorporation emerged in a 1925 opinion where the Court treated certain First Amendment protections as applicable to states through the Fourteenth Amendment’s Due Process Clause, marking an early shift in how courts balanced individual rights and state authority Gitlow v. New York opinion. For a short study guide on selective incorporation in an AP Government context see Fiveable’s material: Selective Incorporation & 14th Amendment – study guide.
Join Michael Carbonara's campaign
For readers who want to examine the origins firsthand, consult the full text of the early opinions referenced later in this article to see how the Court reasoned about rights and federalism.
Early judicial reasoning about fundamental rights
In the years after World War I, the Court began to consider whether certain liberties were so central to ordered liberty that state action could not lawfully abridge them. Early reasoning focused on identifying which freedoms were indispensable to a free society and then testing state laws against that standard.
How doctrine evolved over time
The approach developed gradually. Courts did not simply apply the same standard to every right immediately. Instead, the Court decided a sequence of cases across decades, asking whether particular protections met the test for incorporation and refining the doctrinal language used to make that judgment.
When legal commentators review primary sources on incorporation they often pair opinion texts with doctrinal summaries; Yale’s openYLS has a useful extended discussion on selective incorporation that provides historical materials: Selective Incorporation in the Fourteenth Amendment – openYLS.
Landmark incorporation cases: what major Supreme Court decisions incorporated which rights
Mapp, Gideon, Miranda-criminal procedure protections
In the mid-20th century the Court incorporated several key criminal-procedure protections against the states. A landmark decision required states to exclude evidence obtained in violation of the Constitution, a rule that reshaped police search-and-seizure practices and relied on the Court’s assessment that the rule was necessary to protect Fourth Amendment freedoms in state prosecutions Mapp v. Ohio opinion
Another decision established that states must provide counsel to defendants in felony cases who cannot afford an attorney, a ruling that brought the Sixth Amendment’s right to counsel into state courts and changed how trials were conducted and defended across the country Gideon v. Wainwright opinion
The Court also addressed custodial protections tied to the Fifth Amendment, holding in a later decision that certain warnings and procedural safeguards are required before custodial statements can be used in prosecution, a development that has affected law enforcement procedures in state cases Miranda v. Arizona opinion
McDonald and the Second Amendment
The question of whether the Second Amendment applies against the states was resolved in a 2010 decision that concluded the right to keep and bear arms is incorporated, illustrating how incorporation continues to be decided on an individual-right basis and informed by historical and doctrinal analysis McDonald v. City of Chicago opinion
Quick list of primary texts and summaries to consult when researching incorporation claims
Use primary opinions and the Cornell Wex entry for context
How courts decide incorporation claims: the legal tests and standards
The ‘fundamental to ordered liberty’ test
One doctrinal test asks whether a right is fundamental to the scheme of ordered liberty. If the Court finds a protection meets that standard, it is more likely to be treated as enforceable against the states. This test has guided many mid-20th century incorporation rulings by focusing on whether denial of the right would strike at the basic principles that make a free society possible Incorporation Doctrine overview
The ‘deeply rooted in our history and tradition’ inquiry
Another inquiry asks whether the right is deeply rooted in the Nation’s history and tradition. This approach looks to historical practice and precedent to gauge whether a particular protection has longstanding acceptance, and courts sometimes rely on this analysis particularly when considering rights outside the classical criminal-procedure and speech categories.
Through a judicial process called selective incorporation, where the Supreme Court uses the Fourteenth Amendment's Due Process Clause to decide, case by case, which specific rights in the Bill of Rights are fundamental enough to limit state action.
Role of precedent and historical practice
Court decisions emphasize precedent and historical practice when weighing incorporation claims. Judges refer to earlier opinions, historical statutes, and longstanding practices to assess whether a right fits the doctrinal tests and to maintain coherence in constitutional interpretation.
Which Bill of Rights protections have been applied to the states so far
Most incorporated rights: criminal procedure and free speech examples
Many of the criminal-procedure rights recognized in the Bill of Rights have been held applicable to the states, including protections against unreasonable searches and seizures, the right to counsel in serious cases, and certain custodial protections. These rulings altered the framework within which state police and prosecutors operate and made federal constitutional guarantees enforceable in state courts Mapp v. Ohio opinion
Notable rights incorporated in the 20th century
Key 20th-century incorporations include speech protections recognized early in the doctrine’s history, and criminal-trial rights decided in a series of mid-century cases that set practical standards for criminal justice across states. These holdings show how the Court applied tests of fundamentality to discrete rights rather than treating the Bill of Rights as a single transferable package.
Rights still treated as unincorporated or unresolved
Some rights or specific claims remain the subject of debate or were resolved only recently, meaning the map of incorporated protections is not static. The Second Amendment, for example, was the subject of a major decision in 2010 that confirmed its application to states, demonstrating that incorporation questions can arise well into modern litigation and depend on the Court’s interpretive approach McDonald v. City of Chicago opinion
Practical effects: how incorporation shapes state laws and criminal procedures
Examples of state law changes after incorporation rulings
Incorporation rulings require states to adjust statutes, court procedures, and policing practices to conform with constitutional mandates recognized by the Supreme Court. For example, the exclusionary rule led states to revise evidence-handling rules, and the right-to-counsel decision required states to provide defense counsel in many serious prosecutions Gideon v. Wainwright opinion
When a right has been incorporated, state courts must apply the same constitutional standard the Supreme Court announced. That means defendants in state prosecutions can raise constitutional claims grounded in incorporated protections, and state courts may be required to exclude evidence, provide counsel, or follow procedural safeguards set by precedent.
How courts apply incorporated rights in state prosecutions
When a right has been incorporated, state courts must apply the same constitutional standard the Supreme Court announced. That means defendants in state prosecutions can raise constitutional claims grounded in incorporated protections, and state courts may be required to exclude evidence, provide counsel, or follow procedural safeguards set by precedent.
Open questions and future litigation themes
Open questions remain about whether additional rights or narrower regulatory limits will be incorporated in the future. Courts continue to analyze historical practice, precedent, and the doctrinal tests when parties press new incorporation claims, so outcomes can depend on the specifics of each case and on the Court’s composition at the time Incorporation Doctrine overview
Common mistakes and pitfalls when explaining incorporation
Overstating what incorporation guarantees
A common error is saying incorporation guarantees all rights to apply to the states. The correct account is that incorporation proceeds case by case, and courts have refused to treat the Bill of Rights as automatically binding in full.
Confusing incorporation with federal takeover of state law
Another pitfall is presenting incorporation as a wholesale federal takeover of state authority. In reality incorporation narrows state options on certain matters but leaves wide areas of state discretion; the doctrine operates within federalism, not by eliminating it.
Misattributing positions without primary sources
Writers sometimes summarize a position without checking the controlling opinion. When reporting on incorporation claims, rely on primary texts and attribute holdings to the Court or to named opinions rather than paraphrasing without citation.
Conclusion and primary sources for further reading
Selective incorporation uses the Fourteenth Amendment to make many Bill of Rights protections enforceable against the states, but it does so one right at a time. That approach explains why some protections were applied early, others in the mid-20th century, and some were decided much later.
To read the primary opinions discussed here, consult the Court’s texts for the early incorporation decision, the mid-century criminal-procedure cases, and the later Second Amendment decision. The early opinion that began the selective incorporation line and an encyclopedic doctrinal overview are useful starting points for readers who want the original reasoning Gitlow v. New York opinion and the Cornell Legal Information Institute’s entry on the incorporation doctrine Incorporation Doctrine overview. For additional context on Bill of Rights topics see the site’s page on Bill of Rights and civil liberties.
Selective incorporation is the judicial practice of applying individual protections from the Bill of Rights to state governments using the Fourteenth Amendment, decided case by case.
An early turning point is a 1925 Supreme Court opinion that treated certain First Amendment protections as applicable to the states, which set the stage for later incorporation rulings.
No. Incorporation proceeds right by right, so some protections have been applied to states and others remain the subject of litigation or have been decided more recently.
When discussing incorporation in reporting or study, attribute holdings to the named opinions and avoid assuming the doctrine is fixed; future cases can refine which protections apply.
