Bill of Rights Incorporation — Fourteenth Amendment Application to States

Incorporation doctrine is the legal mechanism that makes your constitutional rights enforceable against local police, state courts, and county governments — not just the federal government. The Bill of Rights was originally written to constrain Congress and the federal executive, not the states. For most of American history, a state could imprison someone without a jury trial, ban speech it found offensive, or allow police to search homes without warrants — the federal Bill of Rights offered no protection from any of it.

The Fourteenth Amendment, ratified in 1868, changed this — but slowly. Through a doctrine called selective incorporation, the Supreme Court has applied nearly all of the Bill of Rights to state and local governments through the Fourteenth Amendment's Due Process Clause, one right at a time, over more than a century of litigation. Today, the First, Second, Fourth, Fifth (partially), Sixth, and Eighth Amendments are fully incorporated. Only the Third Amendment (quartering soldiers), the Fifth Amendment grand jury indictment requirement, and the Seventh Amendment civil jury right remain unincorporated against the states. Every other Bill of Rights protection applies to your local police department, your state criminal court, and your city council — because of this doctrine.

Current Law (2026)

Legal Authority

• U.S. Const. amend. XIV, § 1 — "No State shall . . . deprive any person of life, liberty, or property, without due process of law" — the Due Process Clause through which incorporation occurs
• U.S. Const. amend. XIV, § 1 — Privileges or Immunities Clause — alternative vehicle for incorporation rejected in Slaughter-House Cases (1873) and revived in McDonald (2010) concurrence
• Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833) — Chief Justice Marshall held that the Fifth Amendment's takings clause did not apply to the states; the Bill of Rights limits only the federal government
• Gitlow v. New York, 268 U.S. 652 (1925) — Assumed without deciding that First Amendment speech applies to states through Fourteenth Amendment Due Process
• Palko v. Connecticut, 302 U.S. 319 (1937) — Justice Cardozo articulated the "selective incorporation" test: rights "implicit in the concept of ordered liberty" are incorporated; others are not
• Duncan v. Louisiana, 391 U.S. 145 (1968) — Incorporated the Sixth Amendment right to jury trial in serious criminal cases; refined the test to include rights "fundamental to the American scheme of justice"
• McDonald v. City of Chicago, 561 U.S. 742 (2010) — Incorporated the Second Amendment right to keep and bear arms for self-defense; Justice Thomas's concurrence argued for using the Privileges or Immunities Clause
• Timbs v. Indiana, 586 U.S. 146 (2019) — Incorporated the Eighth Amendment's Excessive Fines Clause against the states
• 42 U.S.C. § 1983 — Civil action for deprivation of incorporated constitutional rights by persons acting under color of state law; authorizes suits for money damages and injunctive relief; does not allow injunctions against judges for judicial acts unless a declaratory order was already entered
• 42 U.S.C. § 1985 — Conspiracy to interfere with civil rights; prohibits two or more persons from conspiring to obstruct equal protection under law or to prevent witnesses and jurors from performing their duties in federal proceedings; creates a private right of action for the person harmed
• 42 U.S.C. § 1988 — Proceedings in vindication of civil rights; allows courts to award reasonable attorney's fees to prevailing plaintiffs in § 1983, § 1985, Title IX, RFRA, and Title VI cases; the primary fee-shifting mechanism that makes civil rights litigation economically viable for private attorneys
• 28 U.S.C. § 2241 — Power to grant writ of habeas corpus; authorizes federal courts to order officials to justify detention; the constitutional baseline vehicle for challenging state custody that violates federal incorporated rights
• 28 U.S.C. § 2254 — State custody; remedies in federal courts; governs federal habeas corpus for state prisoners; requires exhaustion of state remedies; limits federal courts to granting relief only when the state court decision was "contrary to or an unreasonable application of clearly established federal law" as determined by the Supreme Court (the AEDPA standard)
• 28 U.S.C. § 2255 — Federal custody; motion attacking sentence; the federal analog to § 2254 for federal prisoners; one-year statute of limitations running from when conviction becomes final

How It Works

The Original Understanding: Barron v. Baltimore (1833)

In Barron v. Baltimore, John Barron sued Baltimore for destroying the value of his wharf through street grading that diverted water flows. He claimed a Fifth Amendment taking — but Chief Justice Marshall unanimously held that the Fifth Amendment, like all the Bill of Rights, restrained only the federal government. The text said "Congress shall make no law" — not the states. The history confirmed this: the Bill of Rights was added in response to concerns about federal overreach, not state action. The result was a strict binary: the Bill of Rights constrained federal power, states had their own constitutions that might or might not provide equivalent protections, and there was no federal constitutional floor for state treatment of their citizens.

This remained the law for 135 years of American history. States used their police powers to suppress newspapers, conduct searches without warrants, deny jury trials in state criminal prosecutions, and extract confessions through coercion — all without federal constitutional consequence. The Fourteenth Amendment, ratified in the aftermath of the Civil War, was designed to change this. Section 1's Due Process Clause — "No State shall . . . deprive any person of life, liberty, or property, without due process of law" — created a federal constitutional guarantee against state action. But what liberty and what process it guaranteed remained contested for decades.

The Emergence of Selective Incorporation

In the late nineteenth and early twentieth centuries, the Supreme Court debated three theories of what the Fourteenth Amendment did to the Bill of Rights:

1. Total incorporation (Justice Black's view): The Fourteenth Amendment incorporated all of the Bill of Rights, in full, against the states — no more, no less. This view never commanded a majority but influenced the Court's direction.

2. Total incorporation plus (Justice Murphy's view): The Fourteenth Amendment incorporates the Bill of Rights and any other fundamental rights not specifically listed — an even broader view that also failed to attract a majority.

3. Selective incorporation (the prevailing doctrine): The Fourteenth Amendment's Due Process Clause incorporates those rights that are "fundamental to the scheme of ordered liberty" or "deeply rooted in this Nation's history and tradition." Rights are incorporated one at a time as cases arise, applying the full federal standard to the states.

The selective incorporation doctrine took hold through Palko v. Connecticut (1937), where Justice Cardozo described incorporated rights as those "implicit in the concept of ordered liberty" — rights whose abolition would violate "a principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Palko itself held that double jeopardy was not incorporated (a holding later overruled in Benton v. Maryland, 1969). The Court then proceeded right-by-right over the following decades.

The Incorporation Chronology

The Court incorporated rights in roughly this order:

First Amendment: Speech and press were assumed incorporated in Gitlow v. New York (1925) and Near v. Minnesota (1931). Free exercise of religion followed in Cantwell v. Connecticut (1940); the Establishment Clause in Everson v. Board of Education (1947); free assembly and petition were incorporated throughout the same period. The First Amendment is now fully incorporated.

Fourth Amendment: Wolf v. Colorado (1949) incorporated the Fourth Amendment's core protection against unreasonable searches, but held the exclusionary rule (the rule that illegally obtained evidence cannot be used at trial) did not apply to the states. Mapp v. Ohio (1961) incorporated the exclusionary rule itself, dramatically expanding Fourth Amendment enforcement.

Fifth Amendment: The privilege against self-incrimination was incorporated in Malloy v. Hogan (1964), leading directly to Miranda v. Arizona (1966) — Miranda warnings are a Fifth Amendment protection applicable to state police interrogations. The Double Jeopardy Clause was incorporated in Benton v. Maryland (1969). The Takings Clause ("just compensation" for property taken for public use) was incorporated in Chicago, Burlington & Quincy Railroad Co. v. City of Chicago (1897) — one of the earliest. The grand jury indictment requirement (the Fifth Amendment right to be indicted by a grand jury before facing a serious criminal charge) remains not incorporated: states may use alternative charging mechanisms like a prosecutor's information (and most do for many offenses).

Sixth Amendment: Gideon v. Wainwright (1963) incorporated the right to appointed counsel in felony cases — one of the most consequential civil rights rulings of the twentieth century. Klopfer v. North Carolina (1967) incorporated the speedy trial right. Washington v. Texas (1967) incorporated the right to compulsory process. Duncan v. Louisiana (1968) incorporated the jury trial right for serious criminal cases (those potentially resulting in imprisonment of more than six months). Pointer v. Texas (1965) incorporated the Confrontation Clause. The entire Sixth Amendment is now fully incorporated.

Eighth Amendment: Robinson v. California (1962) incorporated the cruel and unusual punishment prohibition. Timbs v. Indiana (2019) incorporated the Excessive Fines Clause — and notably did so unanimously, with Justice Ginsburg writing that the right was "fundamental to our scheme of ordered liberty," leaving no doubt about that test's continuing vitality.

Second Amendment: District of Columbia v. Heller (2008) held that the Second Amendment protects an individual right to keep and bear arms for self-defense (not just in connection with militia service) — but that case involved a federal district, where incorporation was not an issue. McDonald v. City of Chicago (2010) then incorporated the Second Amendment against the states. A plurality relied on the Due Process Clause; Justice Thomas's influential concurrence argued the right should be incorporated through the Privileges or Immunities Clause, reviving that long-dormant provision of the Fourteenth Amendment.

Not incorporated: As of 2026, three provisions remain unincorporated:

• Third Amendment (quartering of soldiers in private homes) — never squarely decided; assumed to apply only to federal action
• Fifth Amendment grand jury indictment requirement — explicitly held non-incorporated in Hurtado v. California (1884); states may and do indict by prosecutor's information
• Seventh Amendment civil jury right — not incorporated; states may use non-jury civil proceedings without violating the federal Constitution (though virtually all states provide civil jury rights under their own constitutions)

The McDonald Privileges or Immunities Question

Justice Thomas's McDonald concurrence argued that the majority's Due Process Clause approach to incorporation was historically inaccurate. The Fourteenth Amendment's Privileges or Immunities Clause — "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" — was originally understood to protect the rights in the Bill of Rights from state abridgment. The Slaughter-House Cases (1873) effectively gutted the Privileges or Immunities Clause five years after ratification, reading it to protect only a narrow set of rights incident to national citizenship (like access to ports and navigable waters), not the Bill of Rights. Thomas argued that Slaughter-House was wrongly decided and that incorporation should run through Privileges or Immunities rather than (or in addition to) Due Process.

The practical difference is currently limited: both routes reach the same result for incorporated rights. But reviving the Privileges or Immunities Clause could, in theory, provide a vehicle for incorporating additional rights or for protecting rights that don't fit neatly into the Due Process framework — including economic liberties that the Court removed from Due Process protection during the New Deal era (West Coast Hotel v. Parrish, 1937). No majority has adopted this view, but Thomas's concurrence gave it fresh life.

The Heller-McDonald Aftermath and Bruen (2022)

New York State Rifle & Pistol Association v. Bruen (2022) established a new test for Second Amendment cases following Heller and McDonald: firearms regulations must be consistent with the historical tradition of firearm regulation at the time of the Founding (1791) or Reconstruction (1868, when the Fourteenth Amendment incorporated the right against the states). The Bruen test applies specifically to the incorporated Second Amendment and has generated extensive litigation over concealed carry permits, assault weapons bans, bump stock prohibitions, and restrictions on possession by domestic violence offenders and the mentally ill. United States v. Rahimi (2024) upheld the federal statute disarming persons subject to domestic violence protective orders, holding it fit within a historical tradition of disarming those who posed a danger to others — the first major application of Bruen's historical test.

Enforcement of Incorporated Rights: § 1983

The primary enforcement vehicle for incorporated constitutional rights against state and local government actors is 42 U.S.C. § 1983. Any person who acts "under color of" state law and deprives another person of a federally guaranteed right — including any incorporated Bill of Rights provision — is liable in federal court. § 1983 applies to police officers, state court judges, school officials, state prison guards, and county administrators. The qualified immunity doctrine limits recovery: officials are not liable unless they violated a "clearly established" right that a reasonable person in their position would have known. Habeas corpus (28 U.S.C. § 2254) provides a separate vehicle for state prisoners to challenge violations of incorporated constitutional rights in federal court.

Key Mechanics

Step 1 — A state or local government actor violates a right. The violation must be by a government actor (state, county, city, or one acting "under color of" state law). Private individuals and corporations are not constrained by incorporated Bill of Rights provisions — only government actors are. The "state action" requirement is a threshold limit on all incorporation doctrine.

Step 2 — Determine whether the right is incorporated. Check whether the Supreme Court has held that specific Bill of Rights provision "fundamental to our scheme of ordered liberty" or "deeply rooted in this Nation's history and tradition." Most rights are incorporated (see the Incorporation Chronology above). Three remain unincorporated: the Third Amendment, the Fifth Amendment grand jury indictment requirement, and the Seventh Amendment civil jury right. If unincorporated, the federal Constitution provides no protection — only state law applies.

Step 3 — Apply the identical federal standard. Once a right is incorporated, states must comply with the same standard as the federal government — not a watered-down state version. "Jot-for-jot" application means the same test (e.g., Terry stop analysis for Fourth Amendment, Miranda for Fifth Amendment) applies in state proceedings as in federal.

Step 4 — Identify the remedy. The enforcement vehicle for incorporated rights against state actors is 42 U.S.C. § 1983 (civil damages and injunctive relief) or federal habeas corpus (28 U.S.C. § 2254) for state prisoners. Criminal defendants may also invoke incorporated rights as defenses — e.g., moving to suppress evidence obtained through an unconstitutional search (Fourth Amendment exclusionary rule).

Step 5 — Apply doctrinal limits. Qualified immunity shields government officials from § 1983 damages unless the violated right was "clearly established" at the time. The "good faith exception" limits Fourth Amendment exclusionary rule applications. Procedural bars (exhaustion of state remedies, Teague retroactivity) limit habeas corpus relief. The "independent and adequate state grounds" doctrine prevents federal review of state court decisions resting on state law.

How It Affects You

If you are a criminal defendant in state court: Incorporation is the reason you have the same constitutional rights in state court that you would have in federal court. You have the right to remain silent (Fifth Amendment, Malloy v. Hogan, 1964 — police must give you Miranda warnings before custodial interrogation). You have the right to counsel (Sixth Amendment, Gideon v. Wainwright, 1963 — appointed counsel if you cannot afford one in any case resulting in imprisonment). You have the right to a jury trial for serious criminal offenses (Duncan v. Louisiana, 1968 — applies to offenses carrying more than six months' imprisonment). You have the right to confront witnesses against you (Sixth Amendment, Pointer v. Texas, 1965). You are protected against unreasonable searches and seizures (Fourth Amendment, Mapp v. Ohio, 1961 — evidence obtained through unconstitutional searches is inadmissible). These rights are not state law privileges that legislatures can take away — they are federal constitutional floors that every state must meet. If your state court conviction violated any of these rights, you may be able to challenge it through 42 U.S.C. § 1983 or federal habeas corpus (28 U.S.C. § 2254).

If you interact with state or local police: Every incorporated Bill of Rights protection applies to local police — not just the FBI or federal agents. The Fourth Amendment's protection against unreasonable searches and seizures, the requirement for probable cause for arrests, and the warrant requirement for searches of your home all constrain your local police department through incorporation. If a local officer conducts an unconstitutional search, the exclusionary rule (incorporated in Mapp v. Ohio) requires the evidence to be suppressed in state court. If an officer violates your clearly established constitutional rights, § 1983 provides a civil remedy — though qualified immunity significantly limits recovery unless the specific right violation was clearly established. The Fifth Amendment self-incrimination protection means that local police must read you Miranda warnings before custodial interrogation; statements obtained without Miranda warnings are generally inadmissible.

If you are an advocate, attorney, or civil rights litigant: The incorporation doctrine is the foundation of civil rights litigation against state and local governments. Every § 1983 claim rests on an incorporated constitutional right. The current frontier issues — whether unincorporated rights should be incorporated, whether the Privileges or Immunities Clause should be revived (per Justice Thomas's McDonald concurrence), whether additional economic liberties should be incorporated — are live questions that could significantly expand or contract the constitutional floor. The Bruen historical test for Second Amendment cases is reshaping incorporated rights jurisprudence in ways that could eventually affect other incorporated rights. Practitioners should track whether the Supreme Court's current conservative supermajority may revisit selective incorporation's parameters — particularly regarding property rights and economic liberties that the Court removed from constitutional protection during the New Deal era.

If you are an elected official, government administrator, or school official: If you act "under color of law" — that is, in your official governmental capacity — every incorporated Bill of Rights provision constrains you. Public school officials cannot lead prayers (Establishment Clause, incorporated), cannot compel students to salute the flag (Barnette, 1943), cannot suspend students without rudimentary due process (Fifth/Fourteenth Amendment). City officials cannot impose excessive fines (Eighth Amendment, Timbs, 2019) or conduct warrantless searches. State prison administrators cannot inflict cruel and unusual punishment (Eighth Amendment). These are federal constitutional floors; state constitutions may and often do provide greater protections, but federal incorporated rights are the constitutional minimum. Violating clearly established incorporated rights while acting in your official capacity exposes you to personal liability under § 1983 (subject to qualified immunity) and your government to injunctive relief and in some cases damages.

State Variations

Incorporation sets a federal constitutional floor — states may provide more protection, but not less. This generates significant variation:

State constitutions as additional sources: Many state constitutions provide broader rights than incorporated federal minimums. California's constitution has been held to independently protect speech against private actors in some contexts (Pruneyard Shopping Center v. Robins, 1980). Several state constitutions have explicit privacy rights (e.g., California, Florida, Montana) that go beyond Fourth Amendment protections. Some state constitutions have stronger takings protections than the federal Just Compensation Clause. State constitutional rights are enforced in state courts and generally are not subject to federal habeas review.

Grand jury indictment: Because the Fifth Amendment grand jury requirement is not incorporated, states are free to charge serious crimes by prosecutor's information rather than grand jury indictment — and most states do for many categories of offenses. This is a significant procedural difference: grand juries provide an independent check on prosecutorial power that the information charging procedure lacks.

Civil jury trials: The Seventh Amendment civil jury right is not incorporated. States provide their own civil jury rights through state constitutional provisions, and all states do so for most cases, but the specific parameters (when jury trial is required, how many jurors, unanimity requirements) vary by state.

Double jeopardy and multiple sovereigns: The Double Jeopardy Clause is incorporated but does not prevent separate prosecutions by the federal government and a state government for the same underlying conduct, because they are separate sovereigns — a doctrine reaffirmed in Gamble v. United States (2019). A state acquittal does not bar a subsequent federal prosecution for the same conduct.

Pending Legislation

No federal legislation can modify which rights are incorporated — that determination belongs to the Supreme Court through constitutional interpretation. But Congress shapes how aggressively incorporated rights are enforced:

• Qualified Immunity Reform (119th Congress, 2025-2026): The George Floyd Justice in Policing Act, introduced in prior Congresses and expected in some form in the 119th, would eliminate or substantially curtail the judge-made qualified immunity doctrine — the biggest single barrier to § 1983 recovery when state officials violate incorporated rights. It has repeatedly cleared the House along party-line votes but stalled in the Senate under the 60-vote threshold. If enacted, it would be the most significant expansion of incorporated-rights enforcement since Mapp v. Ohio (1961).
• COPS Funding and Federal Conditions: The Consolidated Appropriations Act and annual DOJ grant programs attach conditions to federal law enforcement dollars — body camera requirements, use-of-force policy standards, data reporting on stops and searches — that effectively mandate compliance with incorporated Fourth and Fifth Amendment norms as a funding condition. Agencies that don't comply can lose grants averaging $1–5 million annually.
• State-level qualified immunity reform: In the absence of federal action, states including Colorado (2020), New Mexico (2021), New York (2021), and Illinois (2021) have passed their own qualified immunity reforms under state civil rights statutes. These operate independently of § 1983 and provide stronger remedies for violations of incorporated rights in those states.

119th Congress (2025-2026) Bills

• HR 7046 / S 3625 — Qualified Immunity Abolition Act of 2026: Would eliminate qualified immunity entirely and explicitly authorize § 1983 suits against federal, state, and local officers, including federal officers acting under federal law. Status: Introduced.
• HR 7290 — Qualified Immunity Accountability Act: Would lower the criminal intent threshold for rights-deprivation prosecutions, remove death-penalty exposure from § 242, and largely strip qualified immunity from local and federal officers — making it easier to both sue and prosecute officers. Status: Introduced.
• S 3824 — State Authority to Protect Civil Rights: Would authorize state attorneys general to bring federal civil rights suits for bodily harm or death arising from violations of 18 U.S.C. §§ 241–242, giving states a direct enforcement role in protecting incorporated rights. Status: Introduced.
• HR 7278 / S 3731 — Cost of Police Misconduct Act of 2026: Would create a national reporting system and public searchable database tracking law enforcement misconduct allegations, settlements, and agency payments; jurisdictions that fail to report would lose federal grants. Status: Introduced.

Recent Developments

• 2022 — New York State Rifle & Pistol Association v. Bruen: The Supreme Court established a new historical test for Second Amendment (incorporated) cases, striking down New York's may-issue concealed carry permit law and requiring that firearms regulations be consistent with the historical tradition of firearm regulation in 1791 or 1868. The decision unleashed an avalanche of litigation over state firearms laws across the country.
• 2024 — United States v. Rahimi: The Supreme Court upheld 18 U.S.C. § 922(g)(8) — the federal statute disarming persons subject to domestic violence protective orders — under Bruen's historical test, finding a historical tradition of disarming those who posed a threat to others. The 8-1 decision (Justice Thomas alone dissenting) provided the first definitive application of Bruen to a specific firearms regulation.
• 2024 — Rahimi and the scope of incorporation: The Rahimi case involved a federal statute, not a state law, but its historical methodology directly shapes how lower courts apply the incorporated Second Amendment to state firearms laws. Dozens of challenges to state assault weapons bans, high-capacity magazine restrictions, and permit requirements are working through the federal circuits.
• 2019 — Timbs v. Indiana: The most recent incorporation — the Eighth Amendment's Excessive Fines Clause — was applied to states unanimously. The case arose from the forfeiture of a $42,000 Land Rover from a low-level drug offender. The Court's unanimous ruling that the Excessive Fines Clause is "fundamental to our scheme of ordered liberty" has significant implications for civil asset forfeiture reform nationwide.
• 2025-2026 — Privileges or Immunities revival?: Several pending cert petitions and lower court opinions have raised Justice Thomas's McDonald concurrence argument that the Privileges or Immunities Clause — not just Due Process — should serve as the vehicle for incorporating Bill of Rights protections. If the Court's current supermajority granted cert on this question, it could fundamentally restructure incorporation doctrine and potentially extend constitutional protection to economic liberties stripped from the Due Process framework in the New Deal era.

What to Watch

• Supreme Court docket: The two live incorporation questions for the Court's 2025-2026 term are (1) whether the Privileges or Immunities Clause of the Fourteenth Amendment should replace Due Process as the incorporation vehicle, and (2) how Bruen's historical test applies to the dozens of state firearms regulations now challenged in the federal circuits. Track cert grants and circuit splits via SCOTUSblog.
• Qualified immunity in Congress: The 119th Congress will determine whether the George Floyd Justice in Policing Act — or a narrower version — can get 60 Senate votes. Any passage would dramatically change the practical value of incorporated rights for civil plaintiffs.
• State-by-state variation: If you live in Colorado, New Mexico, New York, or Illinois, your state has already abolished qualified immunity for state constitutional claims. Check your state's civil rights statute to understand whether you have stronger local remedies than § 1983 provides.
• Civil asset forfeiture reform: Timbs v. Indiana (2019) established that the Eighth Amendment's Excessive Fines Clause applies to the states — which directly limits civil asset forfeiture programs. Multiple states are using Timbs to challenge forfeitures that exceed any proportionate punishment. If you have property seized by state or local law enforcement without a criminal conviction, Timbs is your primary constitutional argument.