How the Bill of Rights Came to Bind the States, One Right at a Time

Here is a question to spring on the next person who tells you the Bill of Rights protects you from your state government. When did it start doing that? If the answer is "1791," buy them a coffee and gently break the news. For most of American history, your freedom of speech, your right against unreasonable searches and your right to a lawyer were guarded against Washington and against Washington only. Your state legislature could, as a matter of federal constitutional law, ignore every one of them.

That changed slowly, case by case, over nearly two centuries. The doctrine is called incorporation, and it is one of the least understood and most consequential stories in American constitutional history. Let me tell it in order, with dates, and then make the argument about what it means for those of us who care about both liberty and federalism.

The starting point, a Bill of Rights aimed at one government

The first ten amendments were ratified on December 15, 1791. Their target was plain from the first word of the first one:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

"Congress." Not "no state," not "no government." The Anti-Federalists who demanded a bill of rights feared the new national government. Their own states already had constitutions and declarations of rights, many of them older than the federal Constitution, and they trusted those to do the local work.

James Madison wanted more. Among the amendments he proposed to the First Congress in June 1789 was one providing that no state shall violate the equal rights of conscience, the freedom of the press, or trial by jury in criminal cases. He called it, in substance, the most valuable amendment on the whole list, because he believed the states were at least as likely as the national government to trample individual rights. The House agreed. The Senate struck it. Madison lost, and the Bill of Rights went to the states as a restraint on the federal government alone.

Why the 14th Amendment changed the question

The second founding came after the Civil War. Section 1 of the 14th Amendment, ratified on July 9, 1868, speaks directly to the states:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State 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.

When Senator Jacob Howard introduced the amendment in the Senate in May 1866, he said the privileges and immunities of citizens included the personal rights guaranteed by the first eight amendments. The men who wrote the clause had watched Southern states suppress speech, disarm freedmen and deny fair trials. They meant to stop it.

The Supreme Court did not cooperate, at first. What follows is the timeline of how it finally did, and through which door.

The timeline

1833, Barron v. Baltimore. John Barron's wharf in Baltimore harbor was ruined when city street works diverted streams and silted up the water. He sued, invoking the Fifth Amendment's promise that private property shall not be taken for public use without just compensation. Chief Justice John Marshall, for a unanimous Court, held that the Bill of Rights restrained only the federal government. Why it mattered: it settled the original understanding and set the baseline that the 14th Amendment would later be written to change.

1868, the 14th Amendment ratified. Why it mattered: for the first time, the Constitution carried a general command to the states about the rights of citizens and persons.

1873, the Slaughter-House Cases. A five-to-four Court read the Privileges or Immunities Clause so narrowly that it protected almost nothing a state was likely to violate, confining it to rights of national citizenship such as access to ports and protection on the high seas. Why it mattered: the door the framers of the amendment intended to use was all but bolted shut. The full story is in The Slaughter-House Cases Gutted the 14th Amendment's Best Clause in 1873.

1876, United States v. Cruikshank. Arising from the Colfax Massacre in Louisiana, the case held that the First Amendment right of assembly and the Second Amendment right to bear arms restrained only Congress. Why it mattered: it left freedmen without federal protection against those who disarmed and attacked them, and it would take until 2010 to repair the Second Amendment part of the damage.

1897, Chicago, Burlington and Quincy Railroad v. Chicago. The Court held that the Due Process Clause required just compensation when a state or city took private property. Why it mattered: it was the first right in the Bill of Rights effectively applied to the states, and it came through the Due Process Clause, the door every later case would use.

1925, Gitlow v. New York. Benjamin Gitlow was convicted under New York's criminal anarchy law for publishing a radical manifesto. The Court upheld his conviction but stated that it assumed freedom of speech and of the press are among the fundamental liberties protected by the Due Process Clause from impairment by the states. Justice Oliver Wendell Holmes dissented on the merits. Why it mattered: it opened the modern era of incorporation, with a free-speech principle announced in a case the speaker lost.

1931, Near v. Minnesota. The Court struck down a Minnesota law allowing courts to shut down a "malicious, scandalous and defamatory" newspaper as a public nuisance. Why it mattered: the rule against prior restraint, the heart of the original press freedom, now bound the states.

1937, Palko v. Connecticut. Justice Benjamin Cardozo wrote that only rights "implicit in the concept of ordered liberty" applied to the states, and held that the double jeopardy protection was not among them. Why it mattered: it gave the selective approach its famous test, and it was overruled on its own facts in 1969.

1940 and 1947, Cantwell v. Connecticut and Everson v. Board of Education. Cantwell applied the Free Exercise Clause to the states in a case involving Jehovah's Witnesses preaching door to door. Everson applied the Establishment Clause. Why it mattered: religious liberty now bound the states, and the Establishment Clause, a provision originally written partly to protect state religious arrangements from federal interference, was turned around to restrain the states themselves. Conservatives have argued about that second step ever since.

1961, Mapp v. Ohio. Police in Cleveland forced their way into Dollree Mapp's home without a valid warrant and found obscene materials. The Court held that evidence seized in violation of the Fourth Amendment must be excluded from state criminal trials, overruling Wolf v. Colorado (1949) on that point. Why it mattered: the Fourth Amendment's search protections now carried the exclusionary rule into every state courtroom.

1962, Robinson v. California. The Court applied the Eighth Amendment's ban on cruel and unusual punishment to the states. Why it mattered: every state's sentencing law became subject to federal review on that ground.

1963, Gideon v. Wainwright. Clarence Earl Gideon was charged with breaking into a pool hall in Panama City, Florida. He asked for a lawyer, was refused because Florida provided counsel only in capital cases, defended himself and was convicted. From prison he sent the Supreme Court a handwritten petition. The Court, unanimously, in an opinion by Justice Hugo Black, held that the Sixth Amendment right to counsel applies to state felony trials, overruling Betts v. Brady (1942). At his retrial, with a lawyer, Gideon was acquitted. Why it mattered: the promise of a fair trial became real for defendants who could not afford a lawyer.

1964, Malloy v. Hogan. The privilege against self-incrimination was applied to the states. Why it mattered: it set the stage for the warnings that followed two years later.

1968, Duncan v. Louisiana. The Court held that the Sixth Amendment's right to a jury trial in serious criminal cases binds the states. Why it mattered: the jury, the institution the Founders treated as the citizen's direct share in the administration of justice, became a national guarantee.

1969, Benton v. Maryland. Double jeopardy was applied to the states, overruling Palko. Why it mattered: the Court effectively abandoned the idea that some of the Bill's criminal procedure guarantees were too unimportant to bind the states.

2010, McDonald v. City of Chicago. Chicago's handgun ban was struck down. Justice Samuel Alito, writing for a plurality, held that the Second Amendment right recognized in District of Columbia v. Heller (2008) is incorporated through the Due Process Clause. Justice Clarence Thomas concurred in the judgment and argued that the right should be applied through the Privileges or Immunities Clause, the door the 14th Amendment's framers had meant. Why it mattered: the right of self-defense, denied to freedmen in Cruikshank's era, finally bound every state.

2019, Timbs v. Indiana. After Tyson Timbs pleaded guilty to a drug offense, Indiana sought to forfeit his Land Rover, worth far more than the maximum fine for his crime. A unanimous Court, in an opinion by Justice Ruth Bader Ginsburg, held that the Eighth Amendment's Excessive Fines Clause applies to the states, tracing the protection back through the English Bill of Rights of 1689 to Magna Carta. Why it mattered: it reached civil forfeiture, a practice that conservatives and liberals alike had come to see as a property grab dressed as law enforcement.

2020, Ramos v. Louisiana. The Court held that the Sixth Amendment requires a unanimous jury verdict in state trials for serious offenses. Why it mattered: it ended non-unanimous verdicts that, as the Court noted, had roots in Jim Crow-era law. See Ramos v. Louisiana and the Jim Crow Roots of Split-Jury Convictions.

What still does not bind the states

The march is not complete, and the gaps are instructive.

• The Third Amendment on quartering troops has never been squarely applied to the states by the Supreme Court. It has hardly needed to be. Its quiet history is told in The Third Amendment Is the Quietest Right and Still Teaches the Most.
• The Fifth Amendment's grand jury requirement does not bind the states. In Hurtado v. California (1884), the Court held that a state could charge a murder by prosecutor's information rather than indictment.
• The Seventh Amendment's civil jury right does not bind the states. State constitutions supply their own civil jury guarantees, as discussed in The Seventh Amendment Guarantees a Civil Jury for Twenty Dollars and Means It.

The strongest objection, answered

Here is the best conservative case against incorporation, stated fairly. The Constitution created a federal republic of limited national powers. Incorporation transferred to nine federal judges the power to review the criminal procedure, religious arrangements and police practices of fifty states. It nationalized questions the Founders left to local self-government. It turned the Establishment Clause, which partly protected state establishments in 1791, into a weapon against state school prayer and public displays. And it was done through "due process," a phrase about procedures, which the Court stretched to cover substantive rights. Federalism, on this view, was the casualty.

The objection has real force on the method, and none on the result. Point by point:

1. The 14th Amendment changed the federal balance on purpose. The framers of the amendment had just fought a war against states that used their power to deny basic rights. Section 1 says "No State shall." Section 5 gives Congress power to enforce it. Federalism after 1868 is not federalism before 1868, and an originalist reads the whole Constitution, amendments included.
2. The drafting history supports applying the Bill's rights to the states. Howard said so on the Senate floor. Representative John Bingham, the principal author of Section 1, said so in the House. The original intent was to protect these rights against the states.
3. The method was wrong, and conservatives should say so. The Court used the Due Process Clause because Slaughter-House had gutted the Privileges or Immunities Clause. That forced judges to pretend that a clause about process contained substantive guarantees, an invention that later opened the door to rights found nowhere in the text. The better path is Justice Thomas's in McDonald: apply the enumerated rights through the clause written for that purpose, and decline to invent unenumerated ones.
4. Federalism protects liberty. It is not a license to destroy it. The Founders divided power so that no government could easily oppress the citizen. A doctrine that lets a state disarm a freedman, jail a defendant without counsel or seize a car for a minor offense turns federalism against its own purpose. Madison saw that in 1789.
5. Where incorporation went beyond the text, the answer is better reading, not abandoning the project. The Establishment Clause cases are the clearest example of excess, and the Court has begun correcting course, as in Kennedy v. Bremerton School District (2022), which looked to historical practice and understanding. Correcting the misreading of one clause does not require handing the states back the power to censor the press.

The verdict: the Bill of Rights should bind the states, because the 14th Amendment says so. The error was in the door the Court used and the liberties it invented once inside. Conservatives should defend the result and keep pressing for the honest method.

What the long road teaches

Think about the dates. A citizen of a state was protected from his state's taking of his property in 1897, its censorship of his newspaper in 1931, its denial of a lawyer in 1963, its disarming of him in 2010, and its excessive fines in 2019. A right promised in 1868 took, in some cases, more than 140 years to be enforced.

That should humble anyone who thinks rights enforce themselves. Words on parchment are necessary. They are not sufficient. It takes litigants willing to sue, often people like Clarence Earl Gideon with nothing but a pencil and a grievance, and judges willing to read the text as written. It takes citizens who know which rights bind which government, so that they know where to look when something goes wrong. The structure of the Constitution, as Structure Protects Minorities Before the Bill of Rights Ever Does argues, does a great deal of that protective work too.

And it should remind us that state constitutions matter. Before incorporation, state bills of rights were the main guarantee most Americans had. They still offer protections beyond the federal floor, and state supreme courts enforce them, as State Supreme Courts Decide More of Your Life Than the Nine in Washington explains. A citizen who knows only the federal Bill of Rights knows half of his own liberties.

The case in brief

1. The Bill of Rights, ratified in 1791, restrained only the federal government, as Barron v. Baltimore confirmed in 1833.
2. The 14th Amendment, ratified in 1868, was written to apply fundamental rights against the states, but the Court closed the Privileges or Immunities door in 1873 and used the Due Process Clause instead.
3. Rights were applied one at a time, from just compensation in 1897 to excessive fines in 2019, with a few still outside the line.
4. The result is faithful to the 14th Amendment, the method was not, and the cure is to read the Privileges or Immunities Clause as its framers meant it.

What you can do: read your own state constitution's declaration of rights alongside the federal Bill of Rights on our Constitution page, and note which protections your state guarantees that Washington's text does not.