In
United States constitutional law, "incorporation" refers to the application of the
Bill of Rights to state governments through the
Fourteenth Amendment. During the 19th century, the Bill of Rights was held to apply to the federal government alone: the seminal case establishing this was
Barron v. Baltimore. State governments could abridge the Bill of Rights all they wanted, unless a state constitutional provision barred their action.
After the Civil War, the Fourteenth Amendment was ratified to grant citizenship to black Americans and (attempt to) ensure their equal treatment under the law. One of its provisions was that no state could deprive any individual of life, liberty, or property without due process of law. This was almost identical to a provision in the Fifth Amendment, which applied a similar rule to the feds. Another provision in the Fourteenth Amendment was that no state could deprive any individual of the "privileges and immunities" of citizens of the United States.
Some jurists, most notably Hugo Black and William O. Douglas, advocated incorporating the entire Bill of Rights in one fell swoop. Their view, however, was in the minority. Others such as Benjamin Cardozo, Lewis Powell, Felix Frankfurter, and John Harlan were in favor of incorporating only those rights deemed "fundamental to our concept of ordered liberty." It took the Supreme Court a long time to get through all of these rights, but over time, the most familiar components of the Bill of Rights were held to apply to states:
Several provisions of the Bill of Rights have still not been incorporated, and can theoretically be broken by the states at will. Among these are the
Second Amendment's right to bear arms, and the
Third Amendment's freedom from compulsory quartering of soldiers.