The part of the 14th Amendment that is relevant to the incorporation doctrine is its Due Process Clause, which provides that “[n]o State shall…deprive any person of life, liberty, or property, without due process of law.” As we shall see, the concept of “due process of law,” which also applies to the national government in the 5th Amendment, is subject to many different interpretations. One such interpretation occurred in 1925, in Gitlow v. New York, a case in which the U.S. Supreme Court considered whether the 1st Amendment’s protection of freedom of expression applied to the states.
This was not the first time that “incorporation” had been urged upon the Court. Scholars and litigants had been making such arguments for years, many of them arguing for “total incorporation”—that is, a blanket interpretation applying all of the Bill of Rights to the states. The Court had always rejected such arguments.
But in Gitlow, the Court began a careful process that has come to be called “selective incorporation.” Still refusing to incorporate the entirety of the Bill of Rights, the Court adopted the more limited proposition that “[f]or present purposes we may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgment by Congress—are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.” Thus, the Court focused upon the word “liberty” in the 14th Amendment and decided that if a right mentioned in the Bill of Rights is important enough, if it is “fundamental” enough, then it should be incorporated against the state governments.