The First Freedoms
The Privacy Amendments
The 5th Amendment
The 6th Amendment
Civil Trials
The Interpretive Rules

The History of the Bill of Rights Since 1791

The Incorporation Doctrine

What is it?

No single change to our interpretation of a particular right has been as significant as the fundamental change prompted by something called the “incorporation doctrine.”

The Incorporation Doctrine uses language in the 14th Amendment to “incorporate” most of the protections found in the Bill of Rights “against the states.” In plain English, the incorporation doctrine broadens the interpretation of almost all of the individual rights in the Bill of Rights so that they protect individuals against infringement not just by the national government, but by the state governments as well. Therefore, no understanding of the first ten amendments would be complete without some understanding of the 14th Amendment.

The History of Incorporation

When the Bill of Rights was first adopted in 1791, it was intended only as a protection against the new national government, a government that many people feared and mistrusted. It was not intended as a protection against state governments. Notably, James Madison had tried to include one amendment that would have extended protections for some of the most fundamental rights against abuses by the states—namely, “the equal rights of conscience, the freedom of speech or of the press, and the right of trial by jury in criminal cases”—but that attempt failed.

The limited scope of the Bill of Rights was affirmed explicitly by Chief Justice John Marshall in the 1833 case, Barron v. Baltimore. Marshall pointed out that the Bill of Rights was established as a protection against abuses by the federal government, and states had their own constitutions in order to protect their citizens from abuses by state governments.

Marshall acknowledged that a state might violate one of the rights named in the Bill of Rights. In fact, that is exactly what Barron was claiming: that the City of Baltimore, part of the state of Maryland, had taken his property without just compensation in violation of the 5th Amendment. But even if Barron’s claim was true, said Marshall, the Supreme Court had “no jurisdiction of the cause.” Barron would have to seek redress in his own state courts.