Amendment 14 — Modern Doctrine On Selective Incorporation Of Bill Of Rights

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Fourteenth Amendment , Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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.

Modern Supreme Court doctrine embraces the doctrine of selective incorporation of the Bill of Rights against the states, meaning that the Court has held on a case-by-case basis that many of the provisions of the Bill of Rights limit state government action. Numerous Supreme Court decisions hold that particular provisions of the Bill of Rights have been applied to the states through the Fourteenth Amendment ’s Due Process Clause.[1](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-selective-incorporation-of-bill-of-rights#fn1amd14 " E.g., Mapp v. Ohio, 367 U.S. 643 (1961); Klopfer v. North Carolina, 386 U.S. 213 (1967); Duncan v. Louisiana, 391 U.S. 145 (1968); Ashe v. Swenson, 397 U.S. 436 (1970); Baldwin v. New York, 399 U.S. 66 (1970). ") Primarily through the doctrine of selective incorporation, the Court has held that most provisions of the Bill of Rights apply to the states.[2](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-selective-incorporation-of-bill-of-rights#fn2amd14 " In some cases, particularly earlier cases, the Court held that certain rights applied against the states because the rights at issue were fundamental and not merely because they were named in the Bill of Rights and incorporated by the Fourteenth Amendment. E.g., Powell v. Alabama, 287 U.S. 45, 67–68 (1932). For additional discussion of this distinction, see . Whichever formulation was originally used, the Court now generally uses the language of incorporation. See Duncan v. Louisiana, 391 U.S. 145, 148 (1968). ")

The Court has applied to the states the First Amendment ’s[3](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-selective-incorporation-of-bill-of-rights#fn3amd14 " See . ") guarantee of free exercise of religion,[4](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-selective-incorporation-of-bill-of-rights#fn4amd14 " Hamilton v. Regents, 293 U.S. 245, 262 (1934); Cantwell v. Connecticut, 310 U.S. 296, 300, 303 (1940). ") the prohibition on government establishment of religion,[5](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-selective-incorporation-of-bill-of-rights#fn5amd14 " Everson v. Bd. of Educ., 330 U.S. 1, 3, 7, 8 (1947); Illinois ex rel. McCollum v. Bd. of Educ., 333 U.S. 203 (1948). ") the rights of freedom of speech,[6](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-selective-incorporation-of-bill-of-rights#fn6amd14 " Gitlow v. New York, 268 U.S. 652, 666 (1925); Fiske v. Kansas, 274 U.S. 380 (1927); Stromberg v. California, 283 U.S. 359 (1931). ") freedom of the press,[7](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-selective-incorporation-of-bill-of-rights#fn7amd14 " Near v. Minnesota ex rel. Olson, 283 U.S. 697, 701 (1931). ") and freedom of assembly,[8](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-selective-incorporation-of-bill-of-rights#fn8amd14 " DeJonge v. Oregon, 299 U.S. 353 (1937). ") and the right to petition the government.[9](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-selective-incorporation-of-bill-of-rights#fn9amd14 " DeJonge v. Oregon, 299 U.S. at 364, 365; Hague v. CIO, 307 U.S. 496 (1939); Bridges v. California, 314 U.S. 252 (1941). ") The Court has also incorporated against the states the Second Amendment right to keep and bear arms[10](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-selective-incorporation-of-bill-of-rights#fn10amd14 " McDonald v. Chicago, 561 U.S. 742 (2010); see also . ") and the Fourth Amendment right to be free from unreasonable searches and seizures.[11](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-selective-incorporation-of-bill-of-rights#fn11amd14 " Wolf v. Colorado, 338 U.S. 25 (1949); Mapp v. Ohio, 367 U.S. 643 (1961); see also to . ") Numerous Supreme Court cases have applied provisions of the Fifth[12](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-selective-incorporation-of-bill-of-rights#fn12amd14 " Benton v. Maryland, 395 U.S. 784 (1969) (double jeopardy); Ashe v. Swenson, 397 U.S. 436 (1970) (collateral estoppel); Malloy v. Hogan, 378 U.S. 1 (1964) (self-incrimination); Griffin v. California, 380 U.S. 609 (1965) (same); Chi., Burlington & Quincy R.R. v. City of Chicago, 166 U.S. 226 (1897) (just compensation); see also to . ") and Sixth Amendment s[13](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-selective-incorporation-of-bill-of-rights#fn13amd14 " Klopfer v. North Carolina, 386 U.S. 213 (1967) (speedy trial); In re Oliver, 333 U.S. 257 (1948) (public trial); Duncan v. Louisiana, 391 U.S. 145 (1968) (jury trial); Irvin v. Dowd, 366 U.S. 717 (1961) (impartial jury); Turner v. Louisiana, 379 U.S. 466 (1965) (same); In re Oliver, 333 U.S. 257 (1948) (notice of charges); Pointer v. Texas, 380 U.S. 400 (1965) (confrontation); Douglas v. Alabama, 380 U.S. 415 (1965) (same); Washington v. Texas, 388 U.S. 14 (1967) (compulsory process); Powell v. Alabama, 287 U.S. 45 (1932) (right to counsel); Gideon v. Wainwright, 372 U.S. 335 (1963) (same); see also . ") to restrict state government action. In addition, the Court has applied to the states the Eighth Amendment ’s[14](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-selective-incorporation-of-bill-of-rights#fn14amd14 " See . ") restrictions on excessive bail,[15](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-selective-incorporation-of-bill-of-rights#fn15amd14 " McDonald v. City of Chicago, 561 U.S. 742, 764 n.12 (2010); Schilb v. Kuebel, 404 U.S. 357, 365 (1971). ") excessive fines,[16](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-selective-incorporation-of-bill-of-rights#fn16amd14 " Timbs v. Indiana, No. 17-1091, slip op. at 2 (2019). ") and cruel and unusual punishments.[17](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-selective-incorporation-of-bill-of-rights#fn17amd14 " Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947); Robinson v. California, 370 U.S. 660 (1962). ")

By contrast, the Court has declined to apply to the states the Fifth Amendment ’s right to a grand jury indictment[18](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-selective-incorporation-of-bill-of-rights#fn18amd14 " Hurtado v. California, 110 U.S. 516 (1884); see also to . ") and the Seventh Amendment ’s guarantee of a jury trial in civil cases in which the amount in controversy exceeds twenty dollars.[19](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-selective-incorporation-of-bill-of-rights#fn19amd14 " Cf. Adamson v. California, 332 U.S. 46, 64–65 (1947) (Frankfurter, J., concurring). See Minneapolis & St. Louis R.R. v. Bombolis, 241 U.S. 211 (1916); see also to . ") The Court has had no occasion to decide whether the states must comply with the Third Amendment ’s limitations on quartering troops in homes.[20](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-selective-incorporation-of-bill-of-rights#fn20amd14 " See . ") The Ninth and Tenth Amendment s do not expressly enumerate separate substantive rights for protection,[21](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-selective-incorporation-of-bill-of-rights#fn21amd14 " See ; . ") though the Court has cited the Ninth Amendment in litigation against a state.[22](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-selective-incorporation-of-bill-of-rights#fn22amd14 " See Griswold v. Connecticut, 381 U.S. 479 (1965). ")

In deciding whether the Fourteenth Amendment incorporated a specific right against the states, the Court asks whether the right at issue is “both ‘fundamental to our scheme of ordered liberty’ and ‘deeply rooted in this Nation’s history and tradition.’” [23](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-selective-incorporation-of-bill-of-rights#fn23amd14 " Timbs v. Indiana, N