U.S. Government
HS Social Studies
Unit: 06 Lesson: 01
Incorporation Doctrine
Applied to
Specific Amendments of the Bill of Rights (pp. 1 of 3)
Incorporation of the Bill of Rights is the American legal doctrine by which portions of the Bill of
Rights are applied to the states through the Due Process Clause of the Fourteenth Amendment,
although some have suggested that the Privileges or Immunities Clause would be a more
appropriate textual basis. Prior to the ratification of the Fourteenth Amendment and the
development of the incorporation doctrine, in 1833 the Supreme Court held in Barron v.
Baltimore that the Bill of Rights applied only to the Federal, but not any State, government. Even
years after the ratification of the Fourteenth Amendment the Supreme Court in United States v.
Cruikshank, still held that the First and Second Amendment did not apply to state governments.
However, beginning in the 1890’s, a series of United States Supreme Court decisions
interpreted the Fourteenth Amendment to "incorporate" most portions of the Bill of Rights,
making these portions, for the first time, enforceable against the state governments.
Many of the provisions of the First Amendment were applied to the States in the 1930’s and
1940’s, but most of the procedural protections provided to criminal defendants were not
enforced against the States until the Warren Court of the 1960’s, famous for its concern for the
rights of those accused of crimes, brought state standards in line with federal requirements. The
following list enumerates, by amendment and individual clause, the Supreme Court cases that
have incorporated the rights contained in the Bill of Rights. The Ninth Amendment is not listed;
its wording indicates that it "is not a source of rights as such; it is simply a rule about how to
read the Constitution.” The Tenth Amendment is also not listed; by its wording, it is a
reservation of powers to the states and to the people.
Amendment I
Guarantee against establishment of religion - Everson v. Board of Education, 330 U.S. 1
(1947)
Guarantee of free exercise of religion - Cantwell v. Connecticut, 310 U.S. 296 (1940)
Guarantee of freedom of speech - Gitlow v. New York, 268 U.S. 652 (1925)
Guarantee of freedom of the press - Near v. Minnesota, 283 U.S. 697 (1931)
Guarantee of freedom of assembly - DeJonge v. Oregon, 299 U.S. 353 (1937)
Right to petition for redress of grievances - It appears that no one case incorporates this
right individually. However, Edwards v. South Carolina, 372 U.S. 229 (1963) suggests that this
right is incorporated along with all the other First Amendment guarantees.
Guarantee of freedom of expressive association - This right, though not in the words of the
First Amendment, was first mentioned in the case NAACP v. Alabama 377 U.S. 288 (1958), and
was at that time applied to the states.
Amendment II
Right to keep and bear arms - Since the modern Fourteenth Amendment analysis for
incorporation was adopted, the U.S. Supreme Court has never heard a case for
incorporation of this provision against the states. In three separate cases the court has
ruled that the Second Amendment sets forth a pre-existing individual right to possess and carry
firearms, which is not in any manner dependent on the Constitution for its existence, and some
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U.S. Government
HS Social Studies
Unit: 06 Lesson: 01
Incorporation Doctrine
Applied to
Specific Amendments of the Bill of Rights (pp. 2 of 3)
commentators suggest that incorporation is likely, or that incorporation can hardly be escaped if
the inferior courts take the Supreme Court's incorporation jurisprudence seriously as law—as
they are required to do. Three Circuit Courts of Appeals have heard cases on incorporation of
this Amendment; one has ruled for it and two have ruled against it.
Amendment III
Freedom from quartering of soldiers - This provision has been incorporated against the
states within the jurisdiction of the United States Court of Appeals for the Second Circuit, and
has not been held to be incorporated against the states elsewhere. In 1982, the Second Circuit
applied the Third Amendment to the states in Engblom v. Carey. This is a binding authority over
Connecticut, New York, and Vermont, but is only a persuasive authority over the remainder of
the United States.
Amendment IV
Unreasonable search and seizure - This right has been incorporated against the states, along
with the remedy of exclusion of unlawfully seized evidence, by the Supreme Court's decision in
Mapp v. Ohio, 367 U.S. 643 (1961).
Warrant requirements -The various warrant requirements have been incorporated against the
states in Aguilar v. Texas, 378 U.S. 108 (1964). The standards for judging whether a search or
seizure undertaken without a warrant was "unreasonable" also have been incorporated against
the states. See Ker v. California, 374 U.S. 23 (1963).
Amendment V
Right to indictment by a grand jury - This right has been held not to be incorporated
against the states in Hurtado v. California, 110 U.S. 516 (1884). Because many state
constitutions provide for indictment by grand jury, at least in the case of serious crimes, it is
unlikely that the Supreme Court will revisit the decision not to incorporate this right against the
states.
Protection against double jeopardy - This right has been incorporated against the states in
Benton v. Maryland, 395 U.S. 784 (1969).
Constitutional privilege against self-incrimination - This right has been incorporated against
the states in Malloy v. Hogan, 378 U.S. 1 (1964).

A note about the Miranda warnings: The text of the Fifth Amendment does not require that
the police, before interrogating a suspect whom they have in custody, give him or her the nowfamous Miranda warnings. Nevertheless, the Court has held that these warnings are a
necessary protective device, and thus required by the Fifth Amendment by police who
interrogate any criminal suspect, regardless of whether he or she is ultimately prosecuted in
state or federal court.
Protection against taking of private property without just compensation - This right has
been incorporated against the states in Chicago, Burlington & Quincy Railroad Co. v. City of
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U.S. Government
HS Social Studies
Unit: 06 Lesson: 01
Chicago, 166 U.S. 226 (1897). This proposition is now so uncontroversial that the Court recites
it without citation. Also see Kelo v. City of New London, 545 U.S. 469 (2005).
Incorporation Doctrine
Applied to
Specific Amendments of the Bill of Rights (pp. 3 of 3)
Amendment VI
Right to a speedy trial - This right has been incorporated against the states in Klopfer v. North
Carolina, 386 U.S. 213 (1967).
Right to a public trial - This right has been incorporated against the states in the case of In re
Oliver, 333 U.S. 257 (1948).
Right to trial by impartial jury - This right has been incorporated against the states in Duncan
v. Louisiana, 391 U.S. 145 (1968). However, the size of the jury, as well as the requirement that
it unanimously reach its verdict, vary between federal and state courts. Even so, the Supreme
Court has ruled that a jury in a criminal case may have as few as six members. If there are
twelve, only nine jurors need agree on a verdict. Furthermore, there is no right to a jury trial in
juvenile delinquency proceedings held in state court - see McKeiver v. Pennsylvania, 403 U.S.
528 (1971).
Right to notice of accusations - This right has been incorporated against the states. See In re
Oliver, 333 U.S. 257 (1948).
Right to confront adverse witnesses - This right has been incorporated against the states in
Pointer v. Texas, 380 U.S. 400 (1965).
TEACHER NOTES, INCORPORATION, page 3
Right to compulsory process (subpoenas) to obtain witness testimony - This right has
been incorporated against the states in Washington v. Texas, 388 U.S. 14 (1967).
Right to assistance of counsel - This right has been incorporated against the states in Gideon
v. Wainwright, 372 U.S. 335 (1963). In subsequent decisions, the Court extended the right to
counsel to any case in which a jail sentence is imposed.
Amendment VII
Right to jury trial in civil cases - This right has not been held to be incorporated against the
states. See Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211 (1916).
Amendment VIII
Protections against "excessive" bail and "excessive" fines -These provisions have not
been held to be incorporated against the states. In Murphy v. Hunt, 455 U.S. 478 (1982), the
Court held that a pretrial detainee's suit under 42 U.S.C. § 1983 that he was being
unconstitutionally denied bail, in violation of the Eighth Amendment, was rendered moot when
he was convicted in a Nebraska court. The conclusion that the § 1983 case had been moot from
the moment of the defendant's conviction allowed the Court to avoid deciding whether the
Eighth Amendment protection against "excessive" bail applied to prosecutions in state court. In
any event, all state constitutions provide for a similar right, and so the most frequent mechanism
for challenging the amount of bail, or the complete denial of bail, remains state law.
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U.S. Government
HS Social Studies
Unit: 06 Lesson: 01
Protection against "cruel and unusual punishments" - This provision has been incorporated
against the states in Robinson v. California, 370 U.S. 660 (1962). This holding has led the Court
to suggest that the excessive bail and excessive fines protections have also been incorporated.
See Baze v. Rees, 128 S. Ct. 1520, 1529 (2008).
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