Why the Bill of Rights Did Not Apply to States Until the 1920s

The Bill of Rights was added to the U.S. Constitution to limit the federal government, not originally to control state governments. That changed gradually after the Fourteenth Amendment was ratified in 1868. In the 1920s, the Supreme Court began explicitly applying certain Bill of Rights protections to the states—a process called incorporation. The shift was not a single event, and it did not make every protection binding on states at once. Understanding the change requires looking at the Constitution’s original design, the aftermath of the Civil War, and a series of Supreme Court decisions.

What the Bill of Rights Originally Protected

The first ten amendments were ratified in 1791. They protect rights such as freedom of speech, religious exercise, and the press; protection against unreasonable searches; and the right to a jury in many criminal cases. Their original purpose was to restrict the newly created national government, whose powers were listed in the Constitution.

The Constitution’s framers had a specific concern: a powerful central government might threaten individual liberty. The Bill of Rights addressed that risk by placing limits on federal authority. It did not initially provide a general list of restrictions on state governments, which were expected to protect rights under their own constitutions and laws.

This division reflected the federal system. The national government had delegated powers, while states retained broad authority over local matters. The original Constitution also included some limits on states, such as the prohibition on state bills of attainder and ex post facto laws in Article I. But it did not make the first ten amendments applicable to states.

The Supreme Court Confirmed the Federal-Only Rule

In Barron v. Baltimore (1833), the Supreme Court directly answered whether the Fifth Amendment’s Takings Clause restricted state governments. Chief Justice John Marshall wrote that the Bill of Rights limited the federal government alone unless a provision expressly said otherwise. The city of Baltimore therefore was not bound by the Fifth Amendment’s requirement that private property taken for public use receive just compensation.

Barron established the rule for decades: people could invoke the Bill of Rights against federal officials, but generally could not use it directly against state or local officials. State constitutions and statutes might protect similar rights, but those protections depended on state law and could differ from one state to another.

This distinction often matters in modern discussions. When people say the Bill of Rights “did not apply to the states,” they mean that the federal amendments were not enforceable against state governments as federal constitutional restrictions. It does not mean that states were free from every constitutional limit, or that state constitutions offered no civil-liberties protections.

The Fourteenth Amendment Created a New Constitutional Path

The Civil War and Reconstruction transformed the relationship between the federal government, states, and individual rights. Ratified in 1868, the Fourteenth Amendment included the Citizenship Clause, the Privileges or Immunities Clause, the Due Process Clause, and the Equal Protection Clause. Its language expressly addressed state action: a state may not deprive a person of life, liberty, or property without due process of law, or deny any person equal protection of the laws.

The amendment was intended to protect the rights of formerly enslaved people and to limit state abuses after the Civil War. Its ratification offered a possible constitutional basis for applying rights against states. But the Supreme Court did not immediately interpret it as making the entire Bill of Rights binding on state governments.

In the Slaughter-House Cases (1873), the Court read the Privileges or Immunities Clause narrowly. The decision limited the clause’s ability to serve as a broad vehicle for protecting rights against state governments. That interpretation remains important because it helped direct later arguments toward the Fourteenth Amendment’s Due Process Clause instead.

In United States v. Cruikshank (1876), the Court also reaffirmed that many Bill of Rights protections restricted the federal government, not private individuals or state governments. The decision arose from violence against Black citizens in Louisiana and sharply constrained federal enforcement of civil-rights protections. Together, these rulings show why the Fourteenth Amendment’s ratification did not instantly settle how specific rights would apply to states.

What “Incorporation” Means

Incorporation is the process by which the Supreme Court applies a protection in the Bill of Rights to state and local governments through the Fourteenth Amendment. The Court has generally used the Due Process Clause for this purpose. When a right is incorporated, state and local officials must respect it, as must federal officials under the original amendment.

The United States did not adopt the full Bill of Rights against states in one sweeping decision. Instead, the Supreme Court considered particular guarantees over time. This approach is commonly called selective incorporation. The Court asks whether a particular right is fundamental to the American system of liberty and justice and whether it should bind state governments.

Incorporation is different from saying that the text of the Fourteenth Amendment repeats every provision of the Bill of Rights. Rather, the Court has interpreted “liberty” in the Due Process Clause to protect many of the same fundamental rights from state interference.

Why the 1920s Became a Turning Point

The 1920s are associated with the start of modern incorporation because the Supreme Court made a landmark statement about free speech in Gitlow v. New York (1925). Benjamin Gitlow, a socialist, had been convicted under a New York law for distributing a manifesto that advocated revolutionary socialism. He argued that the state had violated his First Amendment rights to free speech and a free press.

The Court upheld Gitlow’s conviction, finding that the state could punish speech it considered a threat to public safety. But the decision also marked an important constitutional shift: the majority assumed that freedom of speech and freedom of the press were among the rights protected from state infringement by the Fourteenth Amendment’s Due Process Clause. That recognition became a foundation for applying First Amendment protections to states.

The nuance matters: Gitlow did not rule that all parts of the Bill of Rights applied to the states, and Gitlow himself did not win. Its significance came from the Court’s recognition that at least some First Amendment freedoms constrained state governments through the Fourteenth Amendment.

Two years later, in Fiske v. Kansas (1927), the Court overturned a conviction involving membership in an organization, finding that the state had violated the defendant’s free-speech rights. Together, these cases reflected a growing willingness to review state action under the First Amendment. They did not complete the incorporation process, which continued for many decades.

Why Incorporation Happened Gradually

There was no single constitutional amendment or Supreme Court ruling in the 1920s that made the entire Bill of Rights apply to states. Several legal and historical factors shaped the gradual approach.

• The Fourteenth Amendment’s wording was broad. The amendment protects “liberty” and “due process,” but it does not list every right that states must respect. Courts had to interpret what those terms included.
• The Supreme Court initially read key clauses narrowly. Decisions such as the Slaughter-House Cases restricted the Privileges or Immunities Clause as a basis for applying rights to states.
• Federalism remained a major concern. Judges and officials debated how much authority the national government should have over state criminal justice, policing, and local regulation.
• Rights raised different legal questions. Free speech, jury trials, searches, and criminal procedure each had distinct histories and practical consequences. The Court addressed them in separate cases.
• Incorporation developed through litigation. A right generally became enforceable against states when a person challenged a state or local law and the Supreme Court decided the relevant constitutional question.

As a result, the historical phrase “the Bill of Rights began applying to states in the 1920s” is useful shorthand, but it needs qualification. The 1920s marked an important turning point, especially for free speech. Incorporation of other rights occurred before and after that decade.

Key Supreme Court Decisions in the Incorporation Process

The 1897 case is an especially useful reminder that incorporation did not begin exclusively in the 1920s. In Chicago, Burlington & Quincy Railroad Co. v. Chicago, the Court applied the Fifth Amendment’s Takings Clause to a state government. The case preceded Gitlow, although the broad incorporation of many other rights came later.

When Major Rights Became Binding on States

After Gitlow, the Supreme Court applied more protections to state and local governments in a series of decisions. In Near v. Minnesota (1931), it held that the First Amendment generally barred states from imposing prior restraints on publication. In Powell v. Alabama (1932), the Court found a due-process violation in the failure to provide adequate legal assistance in a capital case, though later cases clarified the right to counsel.

During the 1960s, incorporation accelerated in criminal-procedure cases. Mapp v. Ohio (1961) applied the exclusionary rule to states, generally preventing prosecutors from using evidence obtained through unconstitutional searches. Gideon v. Wainwright (1963) applied the right to counsel in serious state criminal cases. Miranda v. Arizona (1966) required specific safeguards during custodial interrogation to protect the Fifth Amendment privilege against self-incrimination.

In McDonald v. City of Chicago (2010), the Court held that the Second Amendment applies to state and local governments. The decision relied on the Fourteenth Amendment’s Due Process Clause and reaffirmed selective incorporation as the Court’s established method.

Which Bill of Rights Protections Apply to States Today?

Most, but not all, protections in the first eight amendments have been incorporated against the states. The First Amendment’s core freedoms, the Second Amendment, and many protections for people accused of crimes apply to state and local governments. The Fourth Amendment’s protection against unreasonable searches and seizures applies as well.

Some provisions have not been incorporated. The Supreme Court has not applied the Third Amendment’s restrictions on quartering soldiers to the states in a definitive ruling. The Fifth Amendment right to a grand jury indictment in federal criminal cases has not been incorporated, and the Seventh Amendment civil-jury-trial right has not been applied to the states. The Eighth Amendment’s excessive-fines protection, by contrast, was incorporated in Timbs v. Indiana (2019).

Incorporation also does not mean that every constitutional dispute has an automatic answer. Courts still decide how a right applies in particular circumstances, and states may provide broader protections under their own constitutions than the federal Constitution requires.

Why the Shift Still Matters

The move from a federal-only Bill of Rights to incorporation changed the everyday reach of constitutional liberties. State and local governments handle most policing, public education, and criminal prosecutions. Applying federal rights to those governments therefore made constitutional protections relevant to many more interactions between individuals and public officials.

The change also created a national baseline. A state may not disregard an incorporated federal right simply because its own laws take a different approach. At the same time, states remain free to protect individual liberties more broadly under state law, as long as they do not fall below federal constitutional requirements.

The most accurate short answer to why the Bill of Rights did not apply to states until the 1920s is that the original amendments were designed to limit the federal government, and the Supreme Court confirmed that reading in 1833. The Fourteenth Amendment later supplied a route for applying specific rights to states, but the Court interpreted that route gradually. Gitlow v. New York made the 1920s a pivotal decade—not the moment when every Bill of Rights protection suddenly became enforceable against states.

Sources and Further Reading

• Congressional Constitution Annotated: Incorporation Doctrine
• Supreme Court opinion: Barron v. Baltimore
• Supreme Court opinion: Gitlow v. New York
• Congressional Constitution Annotated: The Privileges or Immunities Clause