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

Application of the Incorporation Doctrine

Fundamental Rights

As Justice Cardozo later emphasized, a right is incorporated against the states by the 14th Amendment not simply because it is named in the Bill of Rights, but rather because it has “been found to be implicit in the concept of ordered liberty” (Palko v. Connecticut, 1937). After Gitlow, it would be up to the Court to decide which other rights named in the Bill of Rights should, or should not, be deemed “fundamental” enough to be incorporated.

Identifying the particular rights that should be incorporated has been a matter of contention ever since. Some justices, such as Hugo Black, believed that all of the rights protected by the Bill of Rights should be incorporated, but that position has never commanded a majority of the Supreme Court. Instead, over the several decades following Gitlow, the Court selectively incorporated most of the Bill of Rights on a case-by-case basis.

This selective approach has meant that some rights would almost inevitably be left out, and, indeed, several provisions in the Bill of Rights—such as the grand jury requirement in the 5th Amendment and the right to a civil jury trial in the 7th Amendment—have never been recognized as applying to the states. The selective approach has also meant that the process of incorporation has been lengthy: the 2nd Amendment right to keep and bear arms was not incorporated until 2010.