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In order for the specific provisions of the Bill of Rights to limit state action, they needed to be incorporated. Incorporation simply means applying the Bill of Rights to the states. If you say that the First Amendment guarantee of free speech has been incorporated, you mean that the free speech clause not only limits actions by the federal government (“Congress shall make no law”) but it has also come to limit state action (so that no state government shall make any such law either).

Some people have called for total incorporation: making every provision of the Bill of Rights applicable to the states. Others have called for selective incorporation: making only the most essential provisions applicable to the states. Still others have argued that there may be fundamental rights that are not specifically enumerated in the Constitution but that are so important that the Supreme Court should recognize them and use them to limit the actions of both the federal government and the states. When the Court discovers one of these unenumerated rights (such as privacy) and applies it to the states, the result is called incorporation plus. This could be either total incorporation plus (applying all the specifically enumerated provisions of the Bill of Rights to the states plus other rights deemed fundamental by the Court) or selective incorporation plus (applying only the most fundamental provisions of the Bill of Rights to the states plus other rights deemed fundamental by the Court).

But if the Bill of Rights was originally meant to limit only the actions of the national government, what justifies incorporation? Two clauses in the Fourteenth Amendment (ratified in 1868) provided opportunities for incorporation: the privileges or immunities clause and the due process clause. Using either of these clauses to apply the Bill of Rights to the states has proven to be controversial. Some argue strongly that these clauses were meant to incorporate the Bill of Rights and should be used to do so.²¹ Others vehemently reject that contention.²² This is yet another example of how reasonable people can disagree fundamentally over the meaning of the Constitution.

The privileges or immunities clause of the Fourteenth Amendment says, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Some, such as Rep. John Bingham (R-OH) who drafted this clause, used the words privileges and immunities as shorthand for the fundamental rights of citizens of the United States that states could not abridge: the Bill of Rights. After all, the words rights, liberties, privileges, and immunities were all used pretty much interchangeably at that time.²³ The Supreme Court, however, rejected that interpretation in the so-called Slaughterhouse Cases of 1873 and embraced a cramped interpretation of privileges and immunities that basically reduced it to protecting a narrow range of rights of U.S. citizens, such as the ability to travel through states and purchase property.²⁴ With that decision, the ability to use the clause to incorporate the Bill of Rights seemed to evaporate.

There the matter stood until the twentieth century, when a new set of Supreme Court justices turned to the Fourteenth Amendment’s due process clause to accomplish what the privileges or immunities clause had not, even though that clause is not as clear-cut a means of incorporating the Bill of Rights as was the privileges or immunities clause. The due process clause of the Fourteenth Amendment says, “No state shall … deprive any person of life, liberty, or property without due process of law.” This due process clause (similar to the other due process clause in the Fifth Amendment limiting federal action) was meant to guarantee fairness. It does not prevent government from depriving someone of life, liberty, or property, but it does require that the government employ fair procedures before doing so. This notion of applying fair procedures is known as procedural due process.

incorporation The process by which the Supreme Court has made specific provisions of the Bill of Rights applicable to state and local governments as well as the federal government.

due process clauses Clauses in the Fifth and Fourteenth Amendments that prevent the federal government (in the case of the Fifth) and states (in the case of the Fourteenth) from depriving people of life, liberty, or property without fair proceedings.

How, then, could the due process clause be used to incorporate provisions of the Bill of Rights? One way is to argue that states violate due process if they do not follow certain procedural guarantees in the Bill of Rights, such as the protection against double jeopardy. But it can also be argued that if the actual content or substance of a particular state law violates a basic right, such as the First Amendment right of free speech, then the law itself constitutes a violation of due process because it is fundamentally unfair. This latter approach is known as substantive due process.

Over time, the Supreme Court used the due process clause to incorporate most—but not all—of the provisions of the Bill of Rights through a long process of selective incorporation and has done so one clause at a time (see Table 4.1). Justice Benjamin Cardozo’s majority opinion in Palko v. Connecticut (1937) offered a justification for selective incorporation: Those rights that are “implicit in the concept of ordered liberty” should be incorporated, but other provisions of the Bill of Rights should not be.²⁵ In other words, some rights are more important than others. But deciding which provisions of the Bill of Rights to incorporate is subjective. Justice Hugo Black tried to minimize that subjectivity by suggesting that every provision of the Bill of Rights be applied to the states through the process of total incorporation. To do otherwise, he argued, allowed Supreme Court justices to substitute “their own concepts of decency and fundamental justice for the language of the Bill of Rights.”²⁶ Black’s argument did not prevail. Thus, the Third and Seventh Amendments have not been incorporated, nor has a portion of the Fifth Amendment (see Table 4.2). But since the unenumerated right of privacy has been incorporated, it looks like the concept of selective incorporation plus ended up winning the incorporation battle.

Table 4.1

Source: Reprinted with permission of Cengage from Craig Ducat, Constitutional Interpretation, 9th ed. (Boston: Wadsworth, 2009).

Table 4.2

Source: Reprinted with permission of Cengage from Craig Ducat, Constitutional Interpretation, 9th ed. (Boston: Wadsworth, 2009).

substantive due process A judicially created concept whereby the due process clauses of the Fifth and Fourteenth Amendments can be used to strike down laws that are deemed to be arbitrary or unfair.

The most recently incorporated provisions of the Bill of Rights are the Second Amendment right to “keep and bear arms” (2010) and the Eighth Amendment protection against “excessive fines” (2019). The decision to incorporate the Second Amendment, which came in a 5–4 ruling in McDonald v. Chicago,²⁷ marked a departure from long-established precedent. Prior to McDonald, the Supreme Court had held that the right to keep and bear arms was limited by the introductory clause of the Second Amendment, which indicated that the right was “necessary to the security of a free State” and related to a “well-regulated Militia.” Thus, in rulings dating back to 1876, the Supreme Court maintained that the Second Amendment only limited the national government, not states, and that the limit on the national government only prevented it from abolishing state militias.²⁸ In other words, the amendment did not create an individual right of gun ownership.

By the late twentieth century, however, federal gun control legislation had become a controversial political issue. Polls showed that a solid majority believed that the Second Amendment protected private gun ownership (see Figure 4.1), and the National Rifle Association lobbied vigorously against gun control legislation, arguing that it violated the Second Amendment. Then, in 2008, the Supreme Court agreed, striking down a District of Columbia law that banned the ownership of handguns and regulated other firearms in the District.²⁹ Having recognized for the first time that the right to keep and bear arms is an individual right, the next step was incorporation—which came in the McDonald case. Nonetheless, the Court pointed out that gun ownership is not an absolute right. Like speech, it can still be regulated under certain circumstances.

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Figure 4.1 The Right to Bear Arms

Survey respondents were asked in 2008 whether they believe the Second Amendment guarantees the rights of individual Americans to own guns, or whether they believe it only guarantees members of state militias such as National Guard units the rights to own guns. How did public opinion square with the Supreme Court’s interpretation of the Second Amendment prior to 2008? Did the Court do the right thing when it incorporated the Second Amendment?

Source: USA Today/Gallup, Feb. 8-10, 2008 https://news.gallup.com/poll/105721/public-believes-americans-right-own-guns.aspx

This discussion illustrates how, as new issues become salient over time, Americans may expect the Supreme Court to reevaluate the incorporation of specific rights (see Tables 4.1 and 4.2). Whether the Court chooses to do so depends largely on an interchange between evolving American values and societal norms, past precedents set by the Supreme Court, and individual judgment of the Supreme Court justices currently sitting on the bench.