The Bill of Rights and
Incorporation
…..Nor shall any State deprive any person of
life, liberty, or property, without due process
of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
14th amendment, US Constitution
Incorporation

Definition: Applying all or some of the Bill
of Rights to the states; means the federal
government can make sure states do not
violate the rights of their citizens
Evolution of Incorporation
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Barron v. Baltimore (1833)–the Supreme Court
determined that the Bill of Rights restricted the
national government but NOT the state
government
Gitlow v. New York (1925)–Court overturned
Barron decision, citing 14th amendment
restrictions on states (“no state shall…deprive
any person of life, liberty, or property w/o due
process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.”)
Selective Incorporation


Since Gitlow court applies Bill of Rights to state
law on a case-by-case-basis; Process is called
Selective Incorporation
Following Rights have NOT been incorporated




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Second Amendment bear arms)
Third (quartering troops in private homes)
Fifth (provision: right to indictment by grand jury)
Seventh (right to a trial by jury for disputes >$20.)
Eighth (provision against “excessive bail and fines”
Selective Incorporation

All other provisions of Bill of Rights apply
equally to the state and national
government. (Thus states may place
restrictions on gun ownership–2nd
amendment is not incorporated, they may
NOT deprive accused felons of their right
to legal counsel–a right incorporated in
Gideon v Wainwright, 1963)
Selective Incorporation

In defining individual rights, the Supreme
Court has consistently weighed the rights
of individuals against the needs of society
at large (Therefore no right is absolute).