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Constitutional incorporation is the Supreme Court’s doctrine for applying many protections in the Bill of Rights to state and local governments through the Fourteenth Amendment, chiefly its Due Process Clause. The Court has done this selectively, deciding whether particular protections apply rather than extending the entire Bill of Rights to states as one package.
What does constitutional incorporation mean?
When people say a right has been “incorporated,” they mean the Supreme Court has held that a particular protection in the Bill of Rights also limits state and local governments. The Bill of Rights originally constrained the federal government; incorporation is the doctrine through which many of its protections came to apply to states as well.
The main constitutional route is the Fourteenth Amendment’s Due Process Clause, which bars a state from depriving any person of life, liberty, or property without due process of law. The Court has generally treated particular Bill of Rights guarantees as fundamental liberties protected from state impairment through that clause. The doctrine concerns government action—not a decision to make the entire Bill of Rights a single, automatically applicable rule for every situation.
In practical terms, incorporation answers a threshold question: does this Bill of Rights protection constrain state and local government as well as the federal government? It does not, by itself, answer every question about what the protection means, whether officials violated it in a particular situation, or what result a court should reach. Those questions depend on the specific guarantee and the facts at issue.
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The Constitution Annotated’s overview describes incorporation as the application of Bill of Rights protections to the states through the Fourteenth Amendment. The central qualification is “many,” not “all”: the Court has considered protections one by one.
Why did the Bill of Rights need to be incorporated?
At first, the Supreme Court did not read the Bill of Rights as a limit on state governments. In Barron v. Baltimore (1833), the Court declined to apply the Fifth Amendment’s Takings Clause to a municipal government. Chief Justice John Marshall wrote that the amendments in the Bill of Rights “contain no expression indicating an intention to apply them to the state governments.”
That older rule is important context: incorporation does not mean the Bill of Rights always governed state conduct directly. In the original framework described by the Court in Barron, the Bill of Rights constrained the federal government, but it did not automatically supply the same limits on state governments. A protection’s existence in the Constitution and its direct application to a particular level of government were therefore distinct questions.
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This history explains why incorporation is described as applying Bill of Rights protections through the Fourteenth Amendment. The doctrine is not a claim that the original amendments were rewritten or that they initially applied to state governments on their own. Rather, the Court interpreted the Fourteenth Amendment’s restrictions on states as the route by which particular existing guarantees could also limit state and local action.
The Court’s interpretation of the Privileges or Immunities Clause in the Slaughter-House Cases narrowed that potential route. The Due Process Clause became the basis for nearly all controlling incorporation decisions. Some Justices have argued that the Privileges or Immunities Clause is the better textual foundation, but that is not the prevailing doctrine. The Congressional Research Service’s report on incorporation through the Fourteenth Amendment explains the distinction and the modern approach.
The distinction between the clauses matters because the Fourteenth Amendment contains more than one provision that has featured in arguments about how constitutional rights limit states. The established incorporation doctrine, however, rests chiefly on Due Process. A Justice’s argument for another textual route may be significant to legal debate without changing which route the Court’s controlling decisions generally use.
How does selective incorporation work?
Selective incorporation means the Court evaluates particular protections rather than extending the whole Bill of Rights to states in one decision. In deciding whether a protection applies, the Court has treated specific Bill of Rights guarantees as fundamental liberties protected from state impairment under the Fourteenth Amendment.
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The process developed through successive cases, not a single ruling that incorporated every amendment. An individual dispute gives the Court an occasion to consider a particular protection and the state action challenged under it. The result can establish that the protection applies to state and local governments, but it does not collapse every constitutional guarantee into one general rule.
Early Fourteenth Amendment decisions sometimes spoke broadly about fundamental rights without declaring that a specific Bill of Rights provision had been incorporated. In Twining v. New Jersey (1908), for example, Justice Oliver Wendell Holmes wrote for the Court that fundamental rights “may also be safeguarded against state action, because a denial of them would be a denial of due process of law.” The language illustrates the developing idea that due process could protect liberties against state action, even when an opinion did not frame the issue as a specific Bill of Rights provision being incorporated.
In Gitlow v. New York (1925), the Court assumed that freedom of speech and press were among the fundamental liberties protected from state impairment. That is a useful example of the transition: the Court was addressing liberty under the Fourteenth Amendment while recognizing that speech and press could not simply be treated as concerns of federal government alone.
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Over time, the Court increasingly focused on specific guarantees in the Bill of Rights. Selective incorporation became the dominant approach by the 1960s. That evolution is why a modern discussion often identifies a particular amendment, protection, and case rather than saying generally that “the Bill of Rights” was applied to the states all at once. The Constitution Annotated’s account of early incorporation doctrine traces this shift.
For a reader trying to follow an incorporation question, the sequence is therefore: identify the specific Bill of Rights guarantee; ask whether the Supreme Court has held it applicable to states through the Fourteenth Amendment; and then separately consider what that guarantee requires in the situation being challenged. The first question is about incorporation. The later questions concern the meaning and application of the right itself.
How is selective incorporation different from total incorporation?
Selective incorporation applies protections individually, as the Court recognizes them. Total incorporation would apply the entire Bill of Rights to states as a package. The difference is not simply whether the Bill of Rights matters to states; it is whether the Court extends every protection at once or determines applicability protection by protection.
The Court has not adopted total incorporation. Modern doctrine is selective, even though most protections in the Bill of Rights are now applied to states. Thus, it is possible to say both that the doctrine covers most recognized protections and that the Court did not incorporate the Bill of Rights wholesale. Those statements describe different features: how broad the doctrine has become and how the Court reached that result.
This distinction is why it is inaccurate to say simply that “the whole Bill of Rights applies to the states.” That shorthand hides the case-by-case history and may suggest that every provision has the same status. A careful explanation identifies the relevant protection and relies on the Court’s treatment of that protection. The modern-doctrine overview summarizes the Court’s case-by-case approach.
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Selective incorporation also differs from a claim that each state gets to decide whether to honor an incorporated protection. Once the Supreme Court has held a protection applicable to the states, a state cannot opt out of that constitutional limit. What the protection requires in a particular dispute is a separate question governed by the right’s interpretation and the facts.
Which Bill of Rights protections have been incorporated?
Examples include several First Amendment freedoms and the Second Amendment right to keep and bear arms. The Constitution Annotated’s 2026 Supplement lists the Establishment Clause, Free Exercise Clause, freedom of speech, freedom of the press, freedom of assembly, and freedom to petition among the First Amendment protections incorporated against the states. It also identifies the Second Amendment right to keep and bear arms as incorporated.
These examples show that incorporation is not limited to one kind of liberty. The First Amendment examples include religion-related protections as well as speech, press, assembly, and petition. The Second Amendment example concerns the right to keep and bear arms. Each is listed as a protection applied against states, but the list should be read provision by provision rather than as a declaration that every constitutional phrase or amendment applies identically.
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There is no need to infer from these examples that every part of every amendment has been incorporated. The Congressional Research Service report’s table does not treat the Ninth and Tenth Amendments as provisions subject to incorporation; it explains that they do not expressly enumerate substantive rights for protection. This is a narrower point than saying those amendments have no constitutional significance. It means they are not treated in that table as enumerated substantive protections going through the incorporation process described there.
For a provision-by-provision account, consult the Constitution Annotated’s 2026 Supplement rather than relying on a blanket statement about the Bill of Rights. The supplement is useful when the question is whether a named guarantee is listed as incorporated. The general doctrine answers the broader question of how such protections can apply to states; the individual entries supply the specific treatment for particular provisions.
The source materials do not supply a simple numerical count worth repeating here. The Congressional Research Service describes “most” protections as applied, while the Constitution Annotated identifies provisions individually. Keeping that qualitative description is more accurate than converting it into an unsupported total or implying that a count settles the legal status of each guarantee.
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1Clear out junk files and repair common Windows errors2Fix the driver behind crashes, sound loss and screen glitches3Repair Windows errors before they cause bigger problemsHow does incorporation compare federal and state protections?
The federal-versus-state distinction is the reason incorporation matters. A Bill of Rights provision directly limits federal government action. The incorporation doctrine concerns whether that same protection also limits state and local government action by way of the Fourteenth Amendment. The underlying guarantee is not replaced; the question is whether it binds an additional level of government.
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For example, the First Amendment protections listed in the Constitution Annotated’s 2026 Supplement are identified as incorporated against states. That means the listed guarantees are not only constraints on the federal government. Likewise, the supplement lists the Second Amendment right to keep and bear arms, with McDonald v. City of Chicago (2010) identified in connection with that right.
This comparison should not be taken to mean that every government dispute has the same outcome regardless of which government actor is involved. Incorporation establishes that a recognized protection applies to state and local governments; the particular constitutional rule and facts still matter. It is best understood as extending the reach of a protection to another level of government, not as resolving every claim in advance.
What does incorporation change in practice?
Incorporation means a state or local government must respect a recognized Bill of Rights protection as constrained by the Supreme Court’s interpretation of that protection. It gives a person challenging government conduct a constitutional basis to invoke the incorporated guarantee against a state or local actor, rather than only against the federal government.
For a simple illustration, a question about state or local action that implicates freedom of speech cannot be dismissed merely on the ground that the First Amendment originally constrained the federal government. Gitlow and the later provision-by-provision treatment show how speech is among the protections recognized against state action. A similar threshold point applies to the listed Second Amendment protection and the reference to McDonald. These examples identify the relevant constitutional reach; they do not determine the outcome of any particular dispute.
It does not mean every disagreement with a public official is automatically a constitutional violation. The doctrine identifies which protections apply to state and local governments; whether particular conduct violates one of those protections depends on the relevant constitutional rule and the facts of the dispute. Nor does incorporation turn every private disagreement into a constitutional case: the doctrine concerns government action, not private conduct by itself.
Incorporation does not change the wording of the Bill of Rights or add new text to it. It is a Supreme Court doctrine about how existing protections apply to state and local governments through the Fourteenth Amendment. The protections remain in their original amendments, while the Fourteenth Amendment supplies the principal route for applying many of them to states.
This is a general explanation of the doctrine, not legal advice for an individual case. A real dispute may require identifying the government actor, the particular right involved, and the Court’s interpretation of that right. Knowing that a protection is incorporated is an important starting point, but not a complete analysis of whether officials violated it.
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What is the key point to remember?
Constitutional incorporation is the Court’s case-by-case method for applying many—not all as a single package—Bill of Rights protections to state and local governments through the Fourteenth Amendment, chiefly its Due Process Clause. Its history runs from Barron’s rejection of direct application to states, through Fourteenth Amendment litigation and successive decisions, to the selective doctrine used today.
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The shortest accurate answer to “How does the 14th Amendment apply the Bill of Rights to the states?” is that the Supreme Court has treated many particular Bill of Rights guarantees as liberties protected against state impairment under the Due Process Clause. The Court did not adopt total incorporation; it developed the doctrine through decisions addressing particular protections. That is why the answer to whether a right applies should be checked at the level of the specific guarantee, not assumed from the phrase “Bill of Rights” alone.
Frequently Asked Questions
Does incorporation change the wording of the Bill of Rights?
No. Incorporation is a Supreme Court doctrine about how existing constitutional protections apply to state and local governments; it does not add new text to the Bill of Rights. The relevant protections remain in their original amendments.
Does incorporation apply to private businesses or individuals?
Incorporation addresses limits on state and local government action. It does not, by itself, turn every dispute involving a private person or business into a constitutional case.
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A state cannot opt out of a constitutional protection the Supreme Court has held applicable to the states. How that protection governs a particular dispute depends on the specific right and the facts.
Does the entire Bill of Rights apply to the states?
No. The Court follows selective incorporation, considering particular protections rather than applying the entire Bill of Rights as one package. Most recognized protections now apply to states, but that is not the same as total incorporation.
What part of the Fourteenth Amendment is the basis for incorporation?
The Due Process Clause is the principal basis for nearly all controlling incorporation decisions. Some Justices have argued that the Privileges or Immunities Clause is a better textual foundation, but that is not the prevailing doctrine.
The Bottom Line
Incorporation is the Supreme Court’s selective, case-by-case way of applying many Bill of Rights protections to state and local governments through the Fourteenth Amendment, chiefly its Due Process Clause. It does not mean the entire Bill of Rights was extended to states in one step, and whether a particular right was incorporated should be checked provision by provision.
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