68 PART oNE • THE AMERiCAN sYsTEM
Incorporation Theory
The view that most of
the protections of the Bill
of Rights apply to state
governments through the
Fourteenth Amendment’s
due process clause.Incorporation of the Fourteenth Amendment
There was no question that the Fourteenth Amendment applied to state governments.
For decades, however, the courts were reluctant to define the liberties spelled out in the
national Bill of Rights as constituting “due process of law,” which was protected under
the Fourteenth Amendment. Not until 1925, in Gitlow v. New York,^2 did the United States
Supreme Court hold that the Fourteenth Amendment protected the freedom of speech
guaranteed by the First Amendment to the Constitution from state infringement.
Only gradually, and never completely, did the Supreme Court accept the incorporation
theory—the view that most of the protections of the Bill of Rights are incorporated into
the Fourteenth Amendment’s protection against state government actions. Table 4–1
below shows the rights that the Court has incorporated into the Fourteenth Amendment
and the case in which it first applied each protection. As you can see in the table, in
the fifteen years following the Gitlow decision, the Supreme Court incorporated into the
Fourteenth Amendment the other basic freedoms (of the press, assembly, the right to peti-
tion, and religion) guaranteed by the First Amendment.
It took time for the Supreme Court to require the states to accept other liberties. Only
in 2010 did the Court rule that the states were obligated to recognize an individual’s right2. 268 U.S. 652 (1925).
TAbLE 4–1: incorporating the bill of Rights
into the Fourteenth AmendmentYear
IssueAmendment
Involved
Court Case
1925
1931
1932
1937
1940
1947
1948
1949
1961
1962
1963
1964
1965
1966
1967
1969
2010Freedom of speech
Freedom of the press
Right to a lawyer in capital punishment cases
Freedom of assembly and right to petition
Freedom of religion
Separation of church and state
Right to a public trial
No unreasonable searches and seizures
Exclusionary rule
No cruel and unusual punishment
Right to a lawyer in all criminal felony cases
No compulsory self-incrimination
Right to privacy
Right to an impartial jury
Right to a speedy trial
No double jeopardy
Right to bear armsI
I
VI
I
I
I
VI
IV
IV
VIII
VI
V
I, III, IV, V, IX
VI
VI
V
IIGitlow v. New York, 268 U.S. 652.
Near v. Minnesota, 283 U.S. 697.
Powell v. Alabama, 287 U.S. 45.
De Jonge v. Oregon, 299 U.S. 353.
Cantwell v. Connecticut, 310 U.S. 296.
Everson v. Board of Education, 330 U.S. 1.
In re Oliver, 333 U.S. 257.
Wolf v. Colorado, 338 U.S. 25.
Mapp v. Ohio, 367 U.S. 643.
Robinson v. California, 370 U.S. 660.
Gideon v. Wainwright, 372 U.S. 335.
Malloy v. Hogan, 378 U.S. 1.
Griswold v. Connecticut, 381 U.S. 479.
Parker v. Gladden, 385 U.S. 363.
Klopfer v. North Carolina, 386 U.S. 213.
Benton v. Maryland, 395 U.S. 784.
McDonald v. Chicago, 561 U.S. 3025.9781285436388_04_ch04_066-091.indd 68 10/15/13 8:56 AM
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