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Civil Liberties in the United States

Incorporation of Bill of Rights Protections to the States

Through the doctrine of incorporation, which rests on the due process clause of the 14th Amendment, most Bill of Rights freedoms have been extended to state governments.

The 1st Amendment begins by stating "Congress shall make no laws ...," and originally the Bill of Rights protections were seen as applying only to the federal government. Early court decisions, such as Barron v. Baltimore (1833), reflected this belief. In this case, John Barron, who owned a wharf in Baltimore, sued the city on the grounds that the accumulation of sand in the harbor prevented deepwater ships from coming to his wharf, which lowered his profits. He claimed that this violated the 5th Amendment by depriving him of property without due process. The Supreme Court said it had no jurisdiction because the Bill of Rights did not apply to the states and dismissed the case.

This legal situation changed with ratification of the 14th Amendment (1868) in the aftermath of the American Civil War. Declaring that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, without due process of law," this amendment enabled the application of the Bill of Rights to the states. Over time, various court decisions applied the legal doctrine that provisions of the U.S. Bill of Rights apply to the states through the due process clause of the 14th Amendment, a principle called incorporation. For example, Mapp v. Ohio (1961) determined that the exclusionary rule applied to the states, and Gideon v. Wainwright (1963) established the right to an attorney in state criminal trials. Incorporation has been implemented by the court on a piece-by-piece basis, applying specific clauses or provisions relevant to a particular case rather than incorporating the entire text of an amendment at once. The 1st, 2nd, and 4th Amendments have been fully incorporated; the 5th, 6th, and 8th have only been partly incorporated. The other amendments have not been incorporated at all.

Cases Incorporating Provisions of Bill of Rights Protections to the States

Amendment Clause Case (Year)
1st Freedom of speech Gitlow v. New York (1925)
1st Freedom of press Near v. Minnesota (1931)
1st Establishment clause Everson v. Board of Education (1947)
1st Free exercise clause Cantwell v. Connecticut (1940)
1st Freedom of assembly DeJonge v. Oregon (1937)
2nd Right to bear arms McDonald v. Chicago (2010)
4th Freedom from unreasonable search and seizure Wolf v. Colorado (1949)
4th Exclusionary rule Mapp v. Ohio (1961)
4th Rules for reasonable warrantless search Ker v. California (1963)
4th Requirement of a warrant Aguilar v. Texas (1964)
5th Protection against double jeopardy Benton v. Maryland (1969)
5th Right to a grand jury Not incorporated
5th Just compensation clause Chicago, Burlington and Quincy Railroad Co. v. City of Chicago (1897)
5th Right not to incriminate oneself Malloy v. Hogan (1964)
6th Right to a public trial In re Oliver (1948)
6th Right to a speedy trial Klopfer v. North Carolina (1967)
6th Right to confront witnesses Pointer v. Texas (1965)
6th Right to counsel Powell v. Alabama (1932)
6th Right to counsel for capital cases Gideon v. Wainwright (1963)
6th Right to counsel for all felony cases Argersinger v. Hamlin (1972)
6th Right to a trial by an impartial jury Parker v. Gladden (1966)
6th Right to know charges against you In re Oliver (1948)
6th Right to subpoena witnesses Washington v. Texas (1967)
8th Right to be free from cruel and unusual punishment Robinson v. California (1972)
8th Protections against excessive bail or fines Not incorporated