The Bill of Rights begins "Congress shall make no law." In 1791 it limited only the national government. How did it come to limit states and cities too? Through the Fourteenth Amendment (1868), which says no state shall "deprive any person of life, liberty, or property, without due process of law."
| Year | Case | What it applied to the states |
|---|---|---|
| 1833 | Barron v. Baltimore | Nothing: the Bill of Rights limits only the federal government |
| 1925 | Gitlow v. New York | The Court assumed freedom of speech and press bind the states (but upheld Gitlow's conviction) |
| 1961 | Mapp v. Ohio | The exclusionary rule for unlawful searches (Fourth Amendment) |
| 1963 | Gideon v. Wainwright | A lawyer for poor defendants charged with felonies (Sixth) |
| 1964 | Malloy v. Hogan | The privilege against self-incrimination (Fifth) |
| 1968 | Duncan v. Louisiana | Jury trial in serious criminal cases (Sixth) |
| 2010 | McDonald v. Chicago | The right to keep and bear arms (Second) |
| 2019 | Timbs v. Indiana | The ban on excessive fines (Eighth) |
Why it works
Why "selective"? The Court never applied the whole Bill of Rights at once. It asked, right by right, whether each is fundamental to the American scheme of liberty, so each became binding on the states in its own case. Most rights have now been incorporated. A few have not: the Fifth Amendment's grand jury requirement (states may charge felonies other ways) and the Seventh Amendment's civil jury; the Court has never directly decided the Third. Some justices have argued that the Fourteenth Amendment's Privileges or Immunities Clause would be the better route; that debate continues in the Constitutional Law course.
Key idea
At first the Bill of Rights bound only the national government (Barron, 1833). Through the Fourteenth Amendment's Due Process Clause, the Court has applied most of it to the states one right at a time, from Gitlow (1925) to McDonald (2010).
Worked example: Before or after?
In 1850 a state seized land without paying for it. Could the owner rely on the Fifth Amendment's Takings Clause against the state?
- Barron v. Baltimore (1833) held the Bill of Rights did not limit states.
- The Fourteenth Amendment did not exist until 1868.
Answer: No; in 1850 the Bill of Rights did not bind the states.
Worked example: Which clause carries the right?
A city punishes a speaker for criticizing the mayor. Through what does the First Amendment reach the city?
- The First Amendment says "Congress shall make no law."
- Cities are part of states, which are bound through the Fourteenth Amendment's Due Process Clause (since Gitlow).
Answer: The Due Process Clause of the Fourteenth Amendment.
Common mistake
Thinking the whole Bill of Rights applied to the states from 1791. It did not; incorporation came piece by piece, mostly in the 1900s, and the grand jury and civil jury rights still are not incorporated. Check the year: before 1868 there was no Fourteenth Amendment.