The Constitution’s Ghost in the Machine: How the Bill of Rights Was Retrofitted, Wire by Wire, Onto the States

Introduction: The Day the Law Breaks

For any student of American law, the first encounter with the doctrine of incorporation is one of profound confusion.

The textbook definition sounds deceptively simple: it is the process by which the Supreme Court has made most of the protections in the Bill of Rights applicable to the states through the Fourteenth Amendment.¹

It is presented as a clean, logical switch-flip, a necessary update to the nation’s operating system.

Yet, to dig into the case law is to fall into a rabbit hole of contradictions, bizarre timelines, and seemingly arbitrary distinctions.

This journey often begins with a moment of failure, a public dismantling of this simplistic understanding.

Imagine a high-stakes moot court competition.

A confident student argues that a state law violates a specific protection in the Bill of Rights.

The argument is elegant, the logic sound.

But the judges—seasoned professors—do not engage with the merits.

Instead, they begin to pull at a single, loose thread: on what authority does that specific right limit the power of a state? The student, relying on the textbook definition, asserts the Fourteenth Amendment.

The judges press further.

Why was freedom of speech applied to the states in 1925, but the right to counsel for felonies not until 1963? Why was the Fifth Amendment’s guarantee of just compensation applied in 1897, while its right to a grand jury indictment remains unincorporated today? The neat definition unravels.

The linear story collapses into a chaotic jumble of cases.

The confidence evaporates, replaced by the sinking realization that the map provided by the textbook does not match the territory of the law.

This frustrating failure is a rite of passage.

It reveals that the standard explanation of incorporation is not just incomplete; it is fundamentally misleading.

The doctrine is not a single event but a sprawling, 150-year-long saga of political struggle, judicial invention, and profound transformation.

The real turning point in understanding this complex history comes from abandoning the legal textbook and looking to an entirely different field: architecture.

Consider the challenge of retrofitting a historic building with modern electrical wiring.

An architect cannot simply tear down the walls and start fresh; the original structure must be respected.

The process is painstaking.

Electricians must find existing conduits or carefully create new ones.

They must thread wires through walls, floorboards, and ceilings, making difficult choices about which rooms get priority.

They often have to invent new techniques on the fly to accommodate the building’s unique quirks.

The result is not a brand-new building, but the original structure, now infused with modern power and utility.

This is the perfect paradigm for understanding the incorporation of the Bill of Rights.

It was not a clean renovation; it has been a century-and-a-half project of Constitutional Retrofitting.

The original Constitution, with its state-centric design, is the historic building.

The Bill of Rights, with its powerful guarantees of individual liberty, is the new electrical system.

The Fourteenth Amendment provided the conduit, but a key pathway was almost immediately sealed off, forcing a long and arduous workaround.

This report traces that journey, exploring the original blueprint of the constitutional house, witnessing the failed grand renovation, and then following, wire by wire, the painstaking process of retrofitting liberty into every room of the American republic.

Part I: The Original Blueprint (1791–1868) – A House with Two Masters

To grasp the revolutionary nature of incorporation, one must first understand the original architectural design of the U.S. Constitution.

The structure ratified in 1788, and the Bill of Rights added in 1791, was not built to be a single, unified house of law.

It was designed as a system of dual sovereignty, a political estate with two distinct power centers: the new, powerful, and widely feared federal government, and the pre-existing state governments.²

The primary concern of the Anti-Federalists, whose objections led directly to the creation of the Bill of Rights, was the potential for tyranny from a centralized national government.¹

The first ten amendments were therefore drafted as a firewall, a clear set of limitations intended to protect citizens and states from federal overreach.⁴

They were not designed to regulate the states themselves, which were seen as the primary protectors of individual liberties and had their own constitutions and bills of rights.¹

The text of the First Amendment, for example, begins with the words “Congress shall make no law…,” explicitly targeting the federal legislature.⁵

While other amendments are worded more generally, the prevailing understanding was that they applied exclusively to the federal government.⁶

This foundational principle was not left to interpretation for long.

It was cemented into constitutional law by one of the most significant early Supreme Court cases.

Landmark Case Study: Barron v. Baltimore (1833) – The Architect’s Ruling

The story of Barron v.

Baltimore begins with a man whose livelihood was destroyed by the actions of his own city.

John Barron was the owner of a profitable wharf in Baltimore’s harbor.

As the city grew, it undertook a series of public works projects that involved diverting streams.

This construction caused large amounts of sand and silt to flow into the harbor, creating shoals that made the water around Barron’s wharf too shallow for large vessels.

His business was ruined.²

Barron sued the city of Baltimore, arguing that by destroying the commercial value of his wharf, the city had effectively “taken” his private property for public use without just compensation.

This, he claimed, was a direct violation of the Fifth Amendment’s Takings Clause.²

He initially won his case at the trial court level, receiving an award of $4,500, but the Maryland Court of Appeals reversed the decision.⁶

Barron then appealed to the U.S. Supreme Court.

The Court, led by the great architect of American constitutional law, Chief Justice John Marshall, delivered a unanimous and definitive ruling.

The Supreme Court, Marshall declared, had no jurisdiction over the case because the Bill of Rights did not apply to state or local governments.¹

His reasoning was purely structural, an interpretation of the Constitution’s original blueprint.

Marshall pointed out that the main body of the Constitution, in Article I, Section 10, contains a specific list of prohibitions on the states (e.g., “No State shall…

pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts…”).

He reasoned that if the framers had intended for the Bill of Rights to also restrain the states, they would have explicitly said so, just as they had in Article I.³

The absence of such language was dispositive.

The Bill of Rights, Marshall concluded, was “intended solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the states”.⁶

At the time, this decision was not controversial.

It was a simple confirmation of the universally accepted principle of dual sovereignty.

The federal government and the state governments were two separate sovereigns, each constrained by its own set of rules.

The Bill of Rights was the rulebook for the federal government alone.

If a citizen’s rights were violated by their state, their only recourse was to their state’s constitution and its courts.

This “two masters” system was the unchallenged law of the land, the foundational state of the constitutional house before the earthquake of the Civil War would irrevocably alter its foundations.

Part II: The Grand Renovation and the Failed Blueprint (1868–1873)

The Civil War was a constitutional crisis that shattered the original blueprint of 1791.

The conflict and its aftermath necessitated a “grand renovation” of the American political structure, a fundamental rethinking of the relationship between the federal government, the states, and the rights of individuals.

The architects of this renovation were the Reconstruction Congress, and their master blueprints were the Thirteenth, Fourteenth, and Fifteenth Amendments.

Of these, the Fourteenth Amendment, ratified in 1868, was the most ambitious and transformative, designed to rewire the very nature of American citizenship and liberty.

The Fourteenth Amendment: The Master Blueprint for Renovation

Section 1 of the Fourteenth Amendment contains the critical language intended to serve as the power conduits for this constitutional retrofit.⁵

It reads:

“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.” ¹⁰

For the project of applying federal rights against the states, two clauses were paramount:

• The Privileges or Immunities Clause: This was the intended superhighway. By prohibiting states from abridging the “privileges or immunities of citizens of the United States,” many of its authors and supporters believed they were directly applying the fundamental rights enumerated in the Bill of Rights to the states.¹⁰ This was the clean, elegant solution to the problem revealed by
  Barron v. Baltimore.
• The Due Process Clause: This clause, which mirrored language in the Fifth Amendment, was initially seen as a more procedural guarantee. It was a secondary tool, a side road compared to the grand avenue of the Privileges or Immunities Clause.¹⁰

With this new blueprint, it seemed that the era of dual sovereignty, where states could disregard the Bill of Rights, was over.

The stage was set for the Supreme Court’s first major interpretation of this transformative amendment.

Landmark Case Study: The Slaughter-House Cases (1873) – Tearing Up the Blueprint

The first test of the Fourteenth Amendment’s power came not from a case involving the rights of newly freed slaves, but from a commercial dispute in New Orleans.

In 1869, the Louisiana legislature, citing public health concerns, granted a 25-year monopoly over the city’s slaughtering business to a single corporation, the Crescent City Live-Stock Landing & Slaughter-House Company.¹⁴

This law effectively put hundreds of independent butchers out of business.

A group of them, organized as the Butchers’ Benevolent Association, sued the state.¹⁴

Their argument was straightforward: the state-sponsored monopoly deprived them of their “privilege” to practice their trade and earn a living, a fundamental right of citizenship now protected against state action by the Fourteenth Amendment’s Privileges or Immunities Clause.¹⁵

The case presented the Supreme Court with a clear opportunity to define the scope of this powerful new clause.

In a stunning and narrowly decided 5-4 ruling, the Court chose to tear up the blueprint.

The majority opinion, written by Justice Samuel Miller, performed a feat of judicial surgery that rendered the Privileges or Immunities Clause almost entirely inert.¹

Miller created a sharp, novel distinction between the rights of “state citizenship” and the rights of “U.S. citizenship”.¹⁵

He argued that the vast majority of fundamental civil rights—including the right to earn a living and nearly all the protections in the Bill of Rights—were attributes of

state citizenship and were unaffected by the Fourteenth Amendment.

The Privileges or Immunities Clause, he concluded, only protected a very narrow, and largely insignificant, list of rights associated with federal citizenship, such as the right to travel between states, access federal seaports, or seek protection on the high seas.¹⁶

Because the right to operate a slaughterhouse was not a privilege of U.S. citizenship, the butchers’ claim failed.¹⁴

This decision was a monumental detour in American constitutional history.

The Court, likely motivated by a fear of radically centralizing power in the federal government and becoming a “perpetual censor upon all legislation of the States,” interpreted the amendment’s most powerful clause into near-oblivion.

Justice Stephen Field’s fiery dissent argued that the majority had made the clause a “vain and idle enactment” and that its purpose was precisely to protect the fundamental rights of all citizens from state infringement—the very argument that would eventually prevail, but through a different constitutional route.¹⁴

The Slaughter-House decision created a massive legal problem.

It slammed the door on the most direct path for applying the Bill of Rights to the states.

The grand renovation was halted.

If the nation’s promise of liberty was to be enforced against the states, lawyers and judges would have to abandon the main highway of the Privileges or Immunities Clause and begin the slow, arduous process of charting a new course down the winding, ambiguous, and previously overlooked side road of the Due Process Clause.

The decision didn’t just resolve a case; it set the stage for the next century of constitutional struggle and invention, ensuring that the process of protecting rights would not be a clean installation, but a messy, ad-hoc retrofit.

Part III: The Retrofit Begins – Threading the First Wires (1897–1940s)

With the Privileges or Immunities Clause effectively neutralized by the Slaughter-House Cases, the project of protecting fundamental rights from state abuse fell into a period of uncertainty.

Litigants and judges, deprived of their most powerful tool, were forced to get creative.

They turned their attention to the Fourteenth Amendment’s other promise: that no state shall “deprive any person of life, liberty, or property, without due process of law”.¹⁰

The question became whether “due process,” a term historically associated with fair procedures, could be infused with substantive meaning.

This era marked the beginning of the slow, painstaking process of threading the first wires of the Bill of Rights into the states through this new, narrow conduit.

The First Wires

The initial attempts were halting.

In cases like Hurtado v.

California (1884), the Court explicitly rejected the idea that the Due Process Clause simply incorporated the Bill of Rights, arguing that if “due process” included the right to a grand jury indictment, then the Fifth Amendment’s separate mention of both would be redundant.¹³

Yet, the door was not completely closed.

The first successful connection was made in a case involving property rights.

In Chicago, Burlington & Quincy Railroad Co. v.

Chicago (1897), the Court held that the Fifth Amendment’s principle of providing “just compensation” for private property taken for public use was an essential element of due process.¹

Without directly mentioning the word “incorporation,” the Court ruled that a state taking property without compensation was a deprivation of property without due process of law.¹⁰

The first wire had been successfully threaded.

The next, and far more significant, connection involved a core personal liberty.

Landmark Case Study: Gitlow v. New York (1925) – Wiring Up Free Speech

Benjamin Gitlow was a member of the Socialist Party who was arrested and convicted under a New York state law that criminalized advocating the overthrow of the government by force.¹⁹

He had arranged for the publication and distribution of a “Left-Wing Manifesto,” which called for mass industrial revolts and the establishment of a communist socialist state.¹⁹

Gitlow argued that the New York law violated his First Amendment right to freedom of speech.

The Supreme Court ultimately upheld Gitlow’s conviction, finding that the state could punish speech that threatened its basic existence, creating a “dangerous tendency” test.¹⁹

But in the course of its opinion, the Court did something revolutionary.

It stated, almost in passing, that it would

assume that the rights at issue were protected by the Fourteenth Amendment.

Justice Edward Sanford wrote for the majority, “For present purposes we may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgment by Congress—are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States”.¹⁹

This was a watershed moment.

For the first time, the Court explicitly “incorporated” a key provision of the First Amendment, making it applicable to the states.¹

The wire for free speech had been connected.

However, this groundbreaking statement was made without a fully developed theory to explain why speech was included but other rights were not.

The Court had an instinct, but it lacked a coherent doctrine.

That doctrine would be forged twelve years later.

Landmark Case Study: Palko v. Connecticut (1937) – Writing the Electrician’s Manual

Frank Palko was charged with first-degree murder for killing two police officers in Connecticut.

A jury found him guilty of the lesser offense of second-degree murder, and he was sentenced to life in prison.

However, a Connecticut statute allowed prosecutors to appeal criminal cases on the basis of legal errors made at trial.

The state appealed, won, and ordered a new trial.²³

At the second trial, Palko was convicted of first-degree murder and sentenced to death.²⁶

Palko appealed to the Supreme Court, arguing that his second trial for the same crime violated the Fifth Amendment’s protection against double jeopardy, a right he contended should apply to the states through the Fourteenth Amendment.²⁶

The Court was faced with a critical question: Was

every right in the Bill of Rights now applicable to the states?

Justice Benjamin Cardozo, writing for the 8-1 majority, answered with a decisive “No.” He rejected Palko’s claim and upheld his death sentence.

But in doing so, Cardozo articulated the intellectual framework that would govern the incorporation doctrine for the next several decades.

He created the electrician’s manual for the retrofitting project.²⁶

He acknowledged that the Court’s decisions seemed inconsistent, with some rights being “absorbed” into the Fourteenth Amendment and others not.²⁷

The “rationalizing principle,” he explained, was a distinction between two types of rights.

On one hand were procedural rights like the right to a jury trial or protection from double jeopardy.

While valuable, Cardozo argued, they were not essential to the concept of justice.

A fair trial could, in theory, occur without them.²⁶

On the other hand were rights that are “

of the very essence of a scheme of ordered liberty” and “so rooted in the traditions and conscience of our people as to be ranked as fundamental“.²⁷

These rights, he argued, were different.

“Of that freedom [of thought and speech],” he wrote, “one may say that it is the matrix, the indispensable condition, of nearly every other form of freedom”.²⁸

It was these truly “fundamental” rights that the Due Process Clause absorbed and protected from state infringement.

Double jeopardy, he concluded, did not meet this high standard.²³

The “fundamental rights” test established in Palko was the intellectual clean-up that the doctrine desperately needed.

The Court in Gitlow had acted on an instinct that states simply shouldn’t be allowed to eradicate free speech.

Cardozo’s test in Palko provided the formal justification for that instinct.

It gave the Court a flexible, if subjective, tool to continue the retrofitting project on a case-by-case basis.

It created a standard—a manual—that allowed judges to decide which “wires” were essential for the house to function and which were merely optional upgrades.

This doctrine of “selective incorporation” was now the official method, setting the stage for the most dramatic phase of the project yet to come.²⁹

Part IV: The Great Wiring Spree – The Warren Court and Criminal Procedure (1950s–1960s)

The framework established in Palko—the selective incorporation of “fundamental” rights—remained the guiding principle for decades.

But the pace of the retrofitting project changed dramatically with the arrival of Chief Justice Earl Warren in 1953.

The Warren Court (1953-1969) presided over a veritable “great wiring spree,” a period of unprecedented activity in which it applied nearly all of the key criminal procedure protections from the Bill of Rights to the states.²⁹

This was not an abstract academic exercise driven by legal theory alone.

It was a revolution fueled by the undeniable, real-world injustices faced by individuals whose stories reached the Supreme Court and exposed the vast chasm between the promise of “due process” and its grim reality in police stations and courtrooms across America.

Landmark Case Study: Mapp v. Ohio (1961) – Wiring the Fourth Amendment’s Exclusionary Rule

The story of Dollree Mapp is a visceral tale of a state’s flagrant disregard for personal privacy.

On May 23, 1957, Cleveland police officers arrived at Mapp’s home, believing a suspect in a recent bombing was hiding inside.³¹

They demanded entry, but Mapp, after calling her lawyer, refused to admit them without a search warrant.³³

Three hours later, more officers arrived.

They forced a door open and stormed in.

When Mapp demanded to see a warrant, an officer held up a piece of paper.

She grabbed it and stuffed it in her blouse.

The officers struggled with her, retrieved the paper, and handcuffed her for being “belligerent”.³³

The police then conducted an exhaustive, top-to-bottom search of her home.

They did not find the bombing suspect or any gambling materials they were also looking for.

What they did find, in a trunk in her basement, was a collection of “obscene materials”.³¹

Mapp was arrested, charged, and convicted for possessing these materials.

At her trial, no search warrant was ever produced or accounted for.³⁴

The Ohio Supreme Court upheld her conviction, ruling that even if the evidence was seized illegally, it was still admissible in a state court.³¹

The U.S. Supreme Court saw things differently.

In a landmark 5-3 decision, the Court overturned Mapp’s conviction.³⁵

The majority opinion went far beyond the specifics of Mapp’s case to address the core constitutional issue.

The Court had previously held in

Wolf v.

Colorado (1949) that the Fourth Amendment’s protection against unreasonable searches and seizures applied to the states, but that the exclusionary rule—the principle that illegally obtained evidence cannot be used in court—did not.³⁶

The

Mapp decision overturned Wolf.

Justice Tom Clark, writing for the majority, argued that without the exclusionary rule, the Fourth Amendment’s guarantee was nothing more than a “form of words,” an “empty promise”.³⁷

To grant the right but withhold the only effective remedy was to render the right meaningless.

The Court declared that “all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court”.³⁷

The Fourth Amendment, and its vital enforcement mechanism, was now fully wired into the states.

Landmark Case Study: Gideon v. Wainwright (1963) – Wiring the Sixth Amendment’s Right to Counsel

If Mapp was a story of police overreach, Gideon was the story of an individual’s powerlessness against the state.

Clarence Earl Gideon was an unlikely hero—a drifter with an eighth-grade education who had spent much of his life in and out of prison for nonviolent offenses.³⁸

In 1961, he was charged with breaking into a pool hall in Panama City, Florida, a felony.³⁹

When he appeared in court, he was too poor to hire a lawyer and asked the judge to appoint one for him.

The judge refused.

Under Florida law at the time, appointed counsel was only required for defendants in capital (death penalty) cases.⁴⁰

Gideon was forced to represent himself.

He made an opening statement, cross-examined witnesses, and tried his best, but he was convicted and sentenced to five years in prison.³⁸

From his prison cell, Gideon refused to accept his fate.

He studied law in the prison library and concluded his rights had been violated.

Using prison stationery and a pencil, he drafted a petition for a writ of habeas corpus and mailed it to the U.S. Supreme Court.⁴⁰

Against all odds, the Court agreed to hear his case.

In a unanimous decision that would change the face of American criminal justice, the Court sided with Gideon.

The ruling explicitly overruled its 1942 precedent, Betts v.

Brady, which had held that the right to counsel was not a fundamental right in all state cases.³⁹

Justice Hugo Black, writing for the Court, declared that the assumption that any person, however poor or uneducated, could get a fair trial without a lawyer was an “obvious truth” that was no longer obvious.

In the modern adversarial system of justice, he wrote, “lawyers in criminal courts are necessities, not luxuries”.⁴⁰

The Court held that the Sixth Amendment’s guarantee of counsel was a fundamental right essential to a fair trial, and as such, it was fully incorporated and made obligatory upon the states by the Fourteenth Amendment.³⁸

Clarence Gideon was granted a new trial.

This time, with a court-appointed lawyer, he was acquitted.⁴⁴

The revolutions in Mapp and Gideon were driven by the power of human stories.

For decades, the Court had been reluctant to incorporate many of these procedural rights.

But the raw facts of these cases—the high-handed invasion of Dollree Mapp’s home, the lonely struggle of Clarence Gideon in a courtroom—made the abstract principles of “privacy” and “fairness” concrete and undeniable.

They proved that a “scheme of ordered liberty” was impossible when police could break down doors with impunity and citizens could be convicted and jailed without a proper defense.

The retrofitting project was no longer just a matter of legal theory; it had become an urgent moral necessity.

Part V: Modern Upgrades and Unwired Rooms (1970s–Present)

Following the flurry of activity during the Warren Court era, the pace of the constitutional retrofitting project slowed, but it did not stop.

The fundamental framework of selective incorporation remained in place, and the Court has continued to address which rights are “deeply rooted in this Nation’s history and tradition” and thus applicable to the states.

This modern era has seen at least one major “upgrade” to the constitutional house, while leaving a few notable rooms still unwired.

Landmark Case Study: McDonald v. City of Chicago (2010) – Wiring the Second Amendment

The most significant incorporation decision of the 21st century centered on the controversial Second Amendment.

The story began with Otis McDonald, a 76-year-old retired maintenance engineer living in a high-crime neighborhood on the South Side of Chicago.⁴⁶

Having been the victim of multiple burglaries and threats from drug dealers, McDonald wished to purchase a handgun for self-defense.

However, a 1982 Chicago ordinance effectively banned the possession of handguns by nearly all private citizens in the city.⁴⁶

This case came to the Supreme Court just two years after its landmark decision in District of Columbia v.

Heller (2008).

In Heller, the Court ruled for the first time that the Second Amendment protects an individual’s right to possess a firearm for self-defense in the home.⁴⁷

But because the District of Columbia is a federal enclave, the

Heller decision only applied to the federal government.

The question left unanswered was whether this right also restricted state and local governments.⁴⁷

In a 5-4 decision, the McDonald Court held that it did.

Justice Samuel Alito, writing for the majority, applied the “fundamental rights” test from Palko.

He concluded that the right to self-defense was a “basic right” and that individual self-defense was the “central component” of the Second Amendment right.

Therefore, the Court reasoned, the right to keep and bear arms for the purpose of self-defense is “fundamental to the Nation’s scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition”.⁴⁸

As such, the Second Amendment was incorporated against the states through the Due Process Clause of the Fourteenth Amendment, and Chicago’s handgun ban was unconstitutional.⁵⁰

The Unwired Rooms: What Hasn’t Been Incorporated?

Despite nearly a century of selective incorporation, a few provisions of the Bill of Rights have never been applied to the states by the Supreme Court.

These “unwired rooms” represent the remaining areas where states are not bound by the same restrictions as the federal government.

• Third Amendment: The protection against the forced quartering of soldiers in private homes has never been the subject of a Supreme Court case and has not been incorporated. It is largely considered obsolete in modern times.⁴
• Fifth Amendment’s Grand Jury Clause: The right to be indicted by a grand jury for a serious crime, first challenged in Hurtado v. California (1884), remains unincorporated. The Court has consistently held that states can use alternative methods, such as a preliminary hearing before a judge, to bring criminal charges without violating due process.⁴
• Seventh Amendment: The right to a jury trial in civil cases involving more than a certain dollar amount has not been incorporated. The Court has viewed this as a procedural rule not fundamental to the core concept of liberty and justice.¹
• Sixth Amendment’s Vicinage Clause: The right to a jury drawn “from the State and district wherein the crime shall have been committed” has not been fully incorporated against the states.⁴
• Eighth Amendment’s Excessive Fines Clause: For many years, the protection against excessive fines was not incorporated. This changed very recently in the case of Timbs v. Indiana (2019), which incorporated this right, demonstrating that the retrofitting project is ongoing.⁴

The following table provides a clear scorecard of this long and complex history, detailing the status of each key provision in the Bill of Rights.

Amendment/Clause	Incorporation Status	Landmark Case(s)	Year(s)
First Amendment
Establishment of Religion	Incorporated	Everson v. Board of Education	1947
Free Exercise of Religion	Incorporated	Cantwell v. Connecticut	1940
Freedom of Speech	Incorporated	Gitlow v. New York	1925
Freedom of the Press	Incorporated	Near v. Minnesota	1931
Freedom of Assembly	Incorporated	DeJonge v. Oregon	1937
Second Amendment
Right to Keep and Bear Arms	Incorporated	McDonald v. City of Chicago	2010
Third Amendment
Quartering of Soldiers	Not Incorporated	N/A	N/A
Fourth Amendment
Unreasonable Search & Seizure	Incorporated	Mapp v. Ohio	1961
Warrant Requirement	Incorporated	Aguilar v. Texas	1964
Fifth Amendment
Grand Jury Indictment	Not Incorporated	Hurtado v. California	1884
Double Jeopardy	Incorporated	Benton v. Maryland	1969
Self-Incrimination	Incorporated	Malloy v. Hogan	1964
Just Compensation (Takings)	Incorporated	Chicago, B. & Q. R.R. v. Chicago	1897
Sixth Amendment
Speedy Trial	Incorporated	Klopfer v. North Carolina	1967
Public Trial	Incorporated	In re Oliver	1948
Impartial Jury	Incorporated	Parker v. Gladden	1966
Notice of Accusation	Incorporated	In re Oliver	1948
Confrontation of Witnesses	Incorporated	Pointer v. Texas	1965
Compulsory Process	Incorporated	Washington v. Texas	1967
Right to Counsel	Incorporated	Gideon v. Wainwright	1963
Vicinage (Local Jury)	Not Incorporated	N/A	N/A
Seventh Amendment
Jury Trial in Civil Cases	Not Incorporated	N/A	N/A
Eighth Amendment
Excessive Bail	Incorporated	Schilb v. Kuebel	1971
Excessive Fines	Incorporated	Timbs v. Indiana	2019
Cruel and Unusual Punishment	Incorporated	Robinson v. California	1962

¹

The internal debate within the McDonald majority itself reveals the enduring complexity of this doctrine.

While all five justices in the majority agreed that the Second Amendment should apply to the states, they split sharply on how.

Justice Alito’s plurality opinion followed the established path, using the Due Process Clause as the vehicle for incorporation.⁴⁹

Justice Clarence Thomas, however, wrote a powerful concurring opinion arguing that the Court should have seized the moment to finally do what it failed to do in 1873: overturn the

Slaughter-House Cases and use the Privileges or Immunities Clause as the proper conduit.¹²

The fact that this debate occurred in 2010 demonstrates that the “failed blueprint” of the Slaughter-House Cases is not merely a historical footnote; it is a live controversy at the highest level of the judiciary.

The majority’s decision to stick with the Due Process Clause highlights the immense power of stare decisis—the principle of respecting precedent.

Even when a past decision is widely criticized as poorly reasoned, the Court is profoundly reluctant to overturn it due to the potential for legal disruption.

This means that the workaround—the ad-hoc retrofitting method born of necessity after the Slaughter-House detour—has become the entrenched, official system.

The ghost of that 1873 decision still haunts the constitutional house, shaping the very tools used to wire it for liberty today.

Conclusion: Living in the Retrofitted House

The journey through the doctrine of incorporation is a journey from baffling complexity to a state of clarified understanding.

The initial frustration—the sense that the law is a chaotic, contradictory mess—gives way to a new perspective when viewed not as a single rule, but as a long, arduous architectural project.

The “Constitutional Retrofitting” paradigm brings order to the chaos.

It explains the slow start, the great detour of the Slaughter-House Cases, the piecemeal work of the early twentieth century, the sudden burst of activity during the Warren Court, and the lingering debates that continue to this day.

It is a framework that acknowledges the messiness of history rather than trying to smooth it over with a simplistic definition.

The story of incorporation is, in a very real sense, the story of America’s second founding.

It is a testament to the remarkable resilience and adaptability of the Constitution, a document capable of profound change not only through the formal amendment process but also through the dynamic, century-and-a-half-long struggle carried out in the nation’s courtrooms.

It is the story of how the country’s most cherished promises of liberty, originally written to restrain a single federal government, were painstakingly rewired, case by case and clause by clause, to restrain all governments, federal, state, and local.

This process transformed the Bill of Rights from a document protecting citizens from a distant capital into a charter of freedom for every American in their daily interactions with local police, local courts, and state legislatures.

The grand renovation envisioned by the authors of the Fourteenth Amendment may have failed in its initial execution, but its ultimate goal has been largely achieved through this persistent, generation-spanning retrofit.

The constitutional house we live in today is still a work in progress, with a few unwired rooms and ongoing debates about the best tools for the job.

But it is a far more just, equitable, and protected dwelling for all its inhabitants because of this long and essential project to wire liberty into its very foundation.

Works cited

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