3.7 Selective Incorporation

In Barron v. Baltimore (1833), a wharf owner argued that the city had ruined his business without paying him, violating the Fifth Amendment's takings clause. The Court ruled that the Bill of Rights restrained only the national government, not the states. So for decades, a state could limit speech or religion without violating the federal Constitution (state constitutions had their own protections).

Ratified in 1868 after the Civil War, the Fourteenth Amendment says no state shall “deprive any person of life, liberty, or property, without due process of law.” The Due Process Clause gave the Court a way to apply federal rights against the states: if a right in the Bill of Rights is part of the “liberty” protected by due process, then states must respect it too.

Selective incorporation is the process of doing this right by right, as cases come up, instead of applying the whole Bill of Rights at once. Justice Hugo Black argued for total incorporation of all of it, but the Court never adopted that approach.

A few protections still apply only to the national government: the Third Amendment's ban on quartering soldiers (the Supreme Court has never ruled on it), the Fifth Amendment's requirement of a grand jury indictment, and the Seventh Amendment's right to a jury in civil cases. That's why many states can bring felony charges without a grand jury.

Incorporation shifted power toward the national government and the federal courts. Most criminal cases are handled by state and local police and courts, so incorporating the rights of the accused (3.8) changed policing and trials nationwide. It also connects to federalism (1.8): the Fourteenth Amendment is one of the main constitutional tools that lets federal courts limit what states do.

When you see a modern case about a state or local law and a Bill of Rights freedom, the claim is technically under the Fourteenth Amendment, which makes the relevant right apply to the state.