State Inclusion Explained

The Bill of Rights, or first Ten Amendments of the Constitution, are the undeniable rights afforded to American citizens. Published over 200 years ago, these rights still hold incredible significance as they pertain to present day society. When they were first introduced, the Bill of Rights only extended to matters overseen by the Federal Government. Trials or instances where the rights were in question did not associate with State governments until the early 1890s. Using the 14th Amendment as its platform, the United States extended the reach of the Bill of Rights to State governments through the incorporation doctrine.

The 14th Amendment of the United States Constitution provided American citizens with a broad definition of their undeniable rights. The Due Process Clause, perhaps the Amendment's most important subsection, recognizes a series of substantive due process rights including: parental, marriage, and procedural rights. The Due Process Clause enabled State governments to recognize the liberties offered in the Bill of Rights to individuals. It simply forced the Government to respect all legal rights established in the Constitution.


Prior to adoption and subsequent ratification of the 14th Amendment, the Supreme Court consistently upheld that the Bill of Rights applied specifically to the Federal Government. Inclusion into State law arose in the early 1890s when a series of Supreme Court cases questioned the credibility of the first 10 Amendments on a State level.

The two most notable Supreme Court cases which sparked the genesis of the incorporation doctrine were Chicago, Burlington and Quincy Railroad v. City of Chicago (1897) and Gitlow vs. New York (1925). In each of these cases, the Supreme Court ruled that the individual State governments were bound to uphold the particular civil liberties awarded in the Constitution. In the Quincy Railroad case the Supreme Court ruled that some form of just compensation is required for property appropriated by State or local governments. This particular ruling upheld and extended the rights detailed in the 5th Amendment to Quincy as they pertained to State governments.

The 1925 Supreme Court case, Gitlow vs New York, is perhaps the most notable inclusion of the Bill of Rights into State law. Benjamin Gitlow was an American socialist who was convicted of criminal anarchy for his role in the production of a Communist publication, "The Left Wing Manifesto". The courts claimed that Gitlow was attempting to augment a violent overthrow of Government through his publication and teachings.


Although the New York court found him guilty, the Supreme Court upheld Gitlow's rights to free speech and free press and later freed him of charges. The Court stated in its decision, "for present purposes, we may assume that freedom of speech and of press...are among the fundamental personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the State." The Supreme Court's ruling was a fundamental starting point for the Bill of Rights to be observed and respected by State law.
Rulings such as Burlington and Quincy Railroad v. City of Chicago (1897) and Gitlow vs. New York (1925) have cemented the inclusion of the Bill of Rights into state law. However, there are a few Amendments, due to their broadness, ambiguity, or archaic nature, which have not been incorporated into State governments. Below is a listing of the Amendments found in the Bill of Rights and their status in regards to State law.

1st Amendment:

● Establishment of religion-incorporated

● Free exercise of religion-incorporated

● Freedom of speech-incorporated

● Freedom of the press-incorporated

● Freedom of assembly-incorporated

2nd Amendment:
● The right to bear arms is not incorporated against the states.

3rd Amendment:

● Freedom of quartering soldiers is not incorporated against the states.

4th Amendment:

● Protection against unreasonable search and seizure-incorporated

● Various requirements for warrant requirements-incorporated

● Judgments pertaining to unreasonable acquisitions of warrants-incorporated

5th Amendment:

● Right to indictment by a grand jury has not been incorporated-the majority of State Constitutions have previously upheld this right.

● Protection against double jeopardy-incorporated

● Protection against self-incrimination-incorporated

6th Amendment:

● Right to a speedy trial-incorporated

● Right to a public trial-incorporated

● Right to trial by impartial jury-incorporated

● Right to notice of accusations-incorporated

NEXT: The American Bill of Rights