The Bill of Rights—the first ten amendments to the United States Constitution—originally only applied to the federal government. The First Amendment begins with the words “Congress shall make no law . . .” “Congress” refers to the United States Congress, but it was assumed that “Congress” applied to all branch-es of the federal government.

However, the Founding Congress refused to include in the Bill of Rights one of James Madison’s initial proposals that would have prohibited states from infringing upon certain individual liberties. Madison’s proposal provided: “No state shall violate the equal rights of conscience, or the freedom of the press, or trial by jury in criminal cases.”

Madison considered it his most valuable proposed amendment, because he recognized that state and local governments may be more prone to abuse individual liberties than the federal government.

It would not be until well into the nineteenth century, 1833, that the Supreme Court would consider the question of whether the Bill of Rights limited both federal and state governments. The Supreme Court initially determined that the Bill of Rights only limited the federal government.

Barron v. Baltimore

John Barron, a Baltimore wharf own-er, sued the city after his property was damaged by city-sanctioned excavation activities. Barron alleged that the city violated his right to just compensation under the Fifth Amendment, a provision that is sometimes called the Takings Clause. In other words, government officials cannot damage or take someone’s property without justly compensating the owners of the property.

The case reached the U.S. Supreme Court. Writing for a unanimous Court, Chief Justice John Mar-shall wrote in Barron v. Baltimore (1833) that whether the Fifth Amendment applied to a local government was “of great importance, but not of much difficulty.” Marshall reasoned that if the First Congress had intend-ed for the Bill of Rights to limit state government officials, it “would have declared this purpose in plain and intelligible language.”

He noted that states had their own individual state constitutions, which should protect and limit state and local governments. He wrote that the “Fifth Amendment must be under-stood as restraining the power of the general government, not as applicable to the states.”

Fourteenth Amendment

Fourteenth Amendment In the aftermath of the Civil War, the so-called Radical Republicans of the 39th Congress instituted fundamental changes to the U.S. Constitution. Some of the leading Radical Republicans included Thaddeus Stevens, Jacob Howard, and John Bingham.

These men led the fight for the adoption of the three so-called Reconstruction Amendments—the Thirteenth Amendment, the Fourteenth Amendment, and the Fifteenth Amendment. The Thirteenth Amendment outlawed slavery and involuntary ser-vitude; the Fourteenth Amendment provided for due process and equal protection; and the Fifteenth Amendment focused on the right to vote.

Section one of the Fourteenth Amendment provides:

No state shall make or enforce any law which shall abridge the privileges or immunities of cit-izens of the United States; nor shall any state deprive any per-son of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Some scholars believe that the 39th Congress intentionally sought to use the Fourteenth Amendment as the means to extend the freedoms in the Bill of Rights to the states. The second sentence of the Fourteenth Amendment begins with the words “No state shall . . .” In the wake of the ratification of the Fourteenth Amendment in 1868, the initial constitutional question was whether the first clause of the Fourteenth Amendment—“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”—applied the Bill of Rights to the states. However, in the Slaughter- House Cases (1873), the U.S. Supreme Court narrowly interpreted the Privileges and Immunities Clause only to prohibit states from infringing on the privileges and immunities that citizens held as national citizens. The net effect of this ruling was that the Privileges and Immunities Clause could not serve as the vehicle to extend the Bill of Rights to the states.

Another clause in the Fourteenth Amendment is the Due Process Clause—that no state shall “deprive any person of life, liberty, or property, without due process of law.” In Chicago Burlington & Quincy Railroad Co. v. City of Chicago (1897), the U.S. Supreme Court ruled that the Due Process Clause prevents state and local governments from taking property without just compensation. In other words, the Court ruled that the Due Process Clause incorporates the Just Compensation Clause and applies it to limit state and local governments.

The Process of Selective Incorporation

The process of incorporation did not happen overnight. Those who advocated for total incorporation of the Bill of Rights, like Justice Hugo Black, had to wait a long time. However, over the course of the twentieth century, the vast majority of the freedoms were incorporated. Dean Erwin Chemerinsky has explained that “from a practical perspective, the total incorporationists largely succeeded in their objective because, one by one, the Supreme Court found almost all of the provisions to be incorporated.”

In 1925, the Supreme Court determined that the freedom of speech should be incorporated. This means that the Court believed that freedom of speech was an essential part of the right to “liberty” that government officials could not take away without “due process of law.” The other four freedoms in the First Amendment—religion, press, assembly, and petition—were incorporated in the years from 1925 to 1947.

In 1932, the U.S. Supreme Court ruled in Powell v. Alabama that state court defendants facing the death penalty had the right to an attorney. The case involved the so-called Scottsboro Boys, African American youths falsely accused of raping two white women. The Scottsboro Boys were rushed to trial before an all-white jury without adequate opportunity to speak to an attorney of choice or present a meaningful defense.

The Supreme Court found such to be a denial of due process:

In the light of the facts outlined in the forepart of this opinion—the ignorance and illiteracy of the defendants, their youth, the circumstances of public hostility, the imprisonment and the close surveillance of the defendants by the military forces, the fact that their friends and families were all in other states and communication with them necessarily difficult, and above all that they stood in deadly peril of their lives—we think the failure of the trial court to give them reasonable time and opportunity to secure counsel was a clear denial of due process.

The Due Process Clause of the Fourteenth Amendment became the vehicle through which the vast majority of the individual freedoms in the Bill of Rights were extended to the states. This process became known as “selective incorporation,” because the Supreme Court incorporated freedoms in the Bill of Rights one freedom at a time over decades and decades.

Because the Fourteenth Amendment led to the expansion of individual liberties to state and local governments, it has been called a “second Bill of Rights.”

The 1960s featured a time when the Supreme Court was led by Chief Justice Earl Warren. The Court engaged in what some have called a criminal procedure revolution. In Mapp v. Ohio (1961), the U.S. Supreme Court determined that the exclusionary rule applied in state criminal court prosecutions because of the Fourteenth Amendment’s Due Process Clause. Under the exclusionary rule, evidence seized in violation of the Constitution is subject to suppression and cannot be used at trial against the defendant. For many years, the exclusionary rule operated in federal courts but not in state courts. The Court in Mapp changed that, finding that police officers in Cleveland, Ohio, violated the Fourth Amendment when they engaged in a roving search of Dollree Mapp’s home, finding allegedly obscene books and pictures.

“Since the Fourth Amendment’s right of privacy has been declared enforceable against the States through the Due Process Clause of the Fourteenth, it is enforceable against them by the same sanction of exclusion as is used against the Federal Government,” wrote the Court.

In another famous case, the Court incorporated the right to counsel in Gideon v. Wainwright (1963). Clarence Earl Gideon, convicted of theft in a Florida pool hall, contended that he had a right to a court-appointed attorney. Florida law did not allow defendants facing criminal charges in state court to receive court-appointed attorneys.

“The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours,” wrote Justice Black for the Court. “From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law.”

Recent Incorporation Decision

A recent debate over incorporation concerned the Second Amendment right to keep and bear arms. In 2008, the U.S. Supreme Court ruled in District of Columbia v. Heller (2008) that the Second Amendment protects an individual, rather than a collective right, to bear arms. However, because the case arose out of the District of Columbia, the Supreme Court did not decide the incorporation question.

Two years later, the U.S. Supreme Court ruled 5-4 in McDonald v. City of Chicago (2010) that the Second Amendment applied to state and local governments. The Court invalidated a Chicago city ordinance that banned handguns. Justice Samuel A. Alito Jr. wrote for the majority: “In sum, it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.”

There are still a few provisions in the Bill of Rights that have not been incorporated. These include the Third Amendment right to not have troops quartered in private homes, the Fifth Amendment right to a grand jury, the Seventh Amendment right to a jury trial in civil cases, and the Excessive Fines Clause of the Eighth Amendment.

While not all rights have been incorporated, the Fourteenth Amendment has had a profound impact on American jurisprudence. It breathed new life into American constitutional law by extending the vast majority of the freedoms in the Bill of Rights to limit the actions of state and local governments.