Fourteenth Amendment: Incorporation (1868)

The Bill of Rights was originally written to apply only to the actions of the federal government. The Fourteenth Amendment was the first to contain prohibitions on the actions of states.

Soon after its ratification, the Supreme Court held in the Slaughterhouse Cases (1873) that the Fourteenth Amendment should be understood to apply only to the plight of former slaves and assuring their equal treatment under law. As time went on, however, the amendment was read more broadly and the doctrine of incorporation emerged.

When the Supreme Court uses the Fourteenth Amendment’s Privileges and Immunities Clause or Due Process Clause to rule that a state law or policy has violated a Bill of Rights protection, it is said to have “incorporated” that protection. For example, the Court incorporated the Establishment Clause in Everson v. Board of Education (1947), freedom of speech in Gitlow v. New York (1925), and freedom of the press in Near v. Minnesota (1931).

Justice Hugo Black argued for “total incorporation,” or that the Fourteenth Amendment meant that all Bill of Rights protections now applied to the states. The Court, however, has used “selective incorporation,” applying some protections but not others. The Court has not applied the Seventh Amendment, for example, to the states.