Table of Contents
Part I: The Humiliation of a Flawed Blueprint
The fluorescent lights of the moot court final round hummed with an almost malicious intensity.
My hands were slick on the podium, my carefully prepared notes a blur of highlighted text that now seemed like a foreign language.
Across from me, my opponent was methodically dismantling my case, and I knew I was losing.
Badly.
I was a second-year law student, and this was supposed to be my moment.
The fictional case we were arguing was a classic civil liberties problem: a state had passed a law that, if enacted by Congress, would have been a flagrant violation of the Bill of Rights.
My entire argument rested on a single, monstrously complex legal concept: the incorporation of the Fourteenth Amendment.
I had spent weeks buried in casebooks, trying to trace the labyrinthine path by which the fundamental freedoms promised in the Bill of Rights—originally a set of restrictions on the federal government alone—were eventually applied to the states.
The judges, a panel of distinguished professors and practicing attorneys, saw the weakness in my foundation.
“Counsel,” one of them interjected, his voice patient but sharp, “your argument seems to be that the Due Process Clause acts as a simple conduit for the Bill of Rights.
But if that’s so, why did the Court in the Slaughter-House Cases so thoroughly neuter the Privileges or Immunities Clause, which the framers clearly intended for that purpose? And why, even now, is the right to a grand jury indictment not incorporated? Is it not ‘fundamental’?”
I stammered.
I had answers, of course—the standard, textbook answers.
I cited Palko v.
Connecticut and the “implicit in the concept of ordered liberty” test.
I talked about selective incorporation versus total incorporation.
But my words felt hollow because, deep down, I knew my understanding was a patchwork of memorized rules, not a coherent framework.
The doctrine felt like a judicial Rube Goldberg machine, a chaotic contraption of historical accidents, intellectual feuds, and convenient workarounds.
It lacked a blueprint.
It lacked elegance.
My opponent, sensing blood in the water, went in for the kill.
He painted my understanding of incorporation not as a principled doctrine, but as a grab-bag of judicial preferences.
He was right.
I had no unifying theory, no story that made sense of the chaos.
I had only a list of cases and outcomes.
The verdict was a formality.
I lost, and the humiliation was profound.
It wasn’t just the sting of defeat; it was the intellectual shame of having built an argument on sand.
That night, surrounded by stacks of books, I pushed my case files aside.
The competition was over, but a new, more urgent quest had begun.
There had to be a better way to understand this.
There had to be an underlying logic, a design that could explain how the foundational promises of American liberty, originally designed to restrain only one government, were systematically rewired to restrain fifty others.
My search was no longer for a winning argument, but for the master blueprint I had so desperately lacked.
Part II: The Original Power Grid: A Constitution with a Single Outlet
To understand the revolution, you must first understand the world it overthrew.
The America of 1791, the year the Bill of Rights was ratified, operated on a completely different constitutional power grid than the one we know today.
The core architectural principle was a profound and pervasive fear of a powerful central government.1
Having just thrown off the yoke of a distant king and Parliament, the framers and the states were deeply suspicious of creating a new potential tyrant in Washington, d+.C.
This fear was the driving force behind the very structure of the Bill of Rights.
It was not conceived as a universal charter of human freedom, but as a specific set of chains forged for a specific entity: the new federal government.
The states, by contrast, were seen as the primary guardians of individual liberty.
Citizens were expected to look to their own state constitutions—many of which had their own bills of rights—for protection against state and local overreach.2
This principle of “dual sovereignty” was not merely implied; it was the bedrock of the system.
The federal government and the state governments were seen as separate, distinct sovereigns, each with its own sphere of authority and its own set of limitations.
The Decisive Ruling: Barron v. Baltimore (1833)
This understanding was cemented by the Supreme Court in the landmark case of Barron v.
Baltimore.4
John Barron, a wharf owner in Baltimore, sued the city, claiming that its public works projects had diverted water flows, depositing so much sand and silt around his wharf that it became too shallow for most ships, effectively destroying his business.
He argued this was a “taking” of his property for public use without just compensation, a clear violation of the Fifth Amendment.
The Supreme Court, in a unanimous opinion written by the formidable Chief Justice John Marshall, disagreed.
Marshall’s reasoning was a masterclass in original intent.
He argued that the Constitution was established by the people of the United States for their own government, not for the government of the individual states.
Had the framers intended the Bill of Rights to apply to the states, he reasoned, they would have explicitly said so, just as they had in other parts of the Constitution that limited state power.2
The First Amendment, for instance, begins with the specific prohibition, “Congress shall make no law…”.7
The Court concluded that the Bill of Rights was intended solely as a check on federal power.1
Mr. Barron’s dispute was with the City of Baltimore and the State of Maryland; his remedy, if any, lay in Maryland’s constitution and courts, not the federal one.
The Analogy: A Proprietary Power System
This is the moment my personal search for a better model began to bear fruit.
The confusion of the doctrine stems from trying to understand it as a series of abstract rules.
But what if we thought of it as an engineering problem?
Imagine the fundamental freedoms of the Bill of Rights—speech, press, religion, due process—as essential, powerful “appliances” necessary for a free society.
The Constitution of 1787, in this analogy, created a specific and proprietary “power grid.” This grid had a single, unique type of “outlet”: the federal government.
The Bill of Rights “appliances” were designed with plugs that fit only this federal outlet.
Each state was like a separate house, built with its own distinct and incompatible wiring.
You couldn’t take a federal “appliance,” like the Fifth Amendment’s Takings Clause, and simply plug it into a Maryland “socket.” It wouldn’t fit; the systems were incompatible.
Barron v.
Baltimore was the moment the Supreme Court, as the nation’s chief electrician, read the original wiring diagram and confirmed this fundamental design.
It told John Barron, in no uncertain terms, that he was trying to plug a federal appliance into a state socket, and it simply would not work.
This “single outlet” design was not a bug or an oversight; it was a deliberate architectural choice born of the Founders’ worldview.
They built the federal government to be a powerful engine, but they were so wary of its potential that they surrounded its power outlet with a thick, insulating wall of prohibitions—the Bill of Rights.
The states, they believed, would have their own systems for protecting liberty.
The idea that the primary threat to freedom would come not from the new federal government, but from the states themselves, was a possibility the original design simply did not account for.
It was a fatal flaw in the blueprint, and it would take a civil war to expose it.
Part III: A Second Founding: Forging the Universal Adapter
The original constitutional design, with its strict separation between federal and state power grids, proved tragically inadequate.
The institution of slavery, and the subsequent Civil War fought to end it, revealed the catastrophic failure of a system that trusted states to be the ultimate guardians of fundamental rights.
In the war’s aftermath, the nation faced a crisis.
The Thirteenth Amendment had abolished slavery, but Southern states quickly enacted discriminatory “Black Codes” designed to replicate the conditions of servitude for newly freed African Americans.10
These laws made a mockery of freedom.
They restricted property ownership, controlled labor, and denied basic civil rights.
It became brutally clear that the very state governments envisioned by the Founders as protectors of liberty were now its most dangerous adversaries.
The original blueprint was obsolete.
The nation needed a “Second Founding”.3
This Second Founding came in the form of the Reconstruction Amendments—the Thirteenth, Fourteenth, and Fifteenth.
They were not mere adjustments to the original Constitution; they were a revolutionary rewriting of its core principles, designed to fundamentally alter the balance of power between the federal government and the states.10
At the heart of this revolution was the Fourteenth Amendment, ratified on July 9, 1868.
The Fourteenth Amendment: A Revolutionary Piece of Engineering
The Fourteenth Amendment was a direct response to the failures of the original system and a repudiation of the Supreme Court’s pre-war decisions like Dred Scott v.
Sandford, which had denied citizenship to African Americans.11
Its language was sweeping and its purpose was clear: to establish national citizenship and empower the federal government to protect the rights of citizens from state infringement.
This brings us back to our engineering analogy.
The problem facing the Reconstruction Congress was clear: the nation possessed these incredible, essential “appliances” for liberty—the Bill of Rights—but they only worked in one federal “outlet.” The states, now the primary threat, had dozens of incompatible “sockets” and were actively short-circuiting the rights of their own citizens.
The solution was an act of brilliant constitutional engineering: they invented a universal adapter.
The Fourteenth Amendment is this adapter.
Its entire purpose is to take the proprietary plug from a federal “appliance” (a right from the Bill of Rights) and make it fit into any state “socket.” It is the device designed to bridge the gap between the two separate power grids, to create a single, national standard for fundamental freedoms.
The Adapter’s Design: The Four Key Ports of Section 1
The genius of the adapter lies in Section 1, which contains four crucial clauses, or “ports,” designed to make this connection:
- The Citizenship Clause: “All persons born or naturalized in the United States… are citizens of the United States and of the State wherein they reside.” This clause established a national definition of citizenship, overturning Dred Scott and ensuring that states could not deny citizenship to anyone born on U.S. soil.11
- The Privileges or Immunities Clause: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” This was intended to be the adapter’s main, all-purpose port.
- The Due Process Clause: “…nor shall any State deprive any person of life, liberty, or property, without due process of law.” This port, as we will see, would become the unexpected workhorse of the entire system.
- The Equal Protection Clause: “…nor deny to any person within its jurisdiction the equal protection of the laws.” This port would become the foundation for the fight against segregation and other forms of discrimination.16
The “manufacturer’s intent” for this device could not be clearer.
The primary author of Section 1, Congressman John A.
Bingham of Ohio, stated his goal was to “nationalize the Bill of Rights”.10
When introducing the amendment in the Senate, Senator Jacob Howard of Michigan was even more explicit, stating that the Privileges or Immunities Clause would extend to the states “the personal rights guaranteed and secured by the first eight amendments”.10
The user manual, written by the amendment’s own creators, clearly indicated that the “Privileges or Immunities” port was designed to be the main connection point for all the essential appliances of liberty.
This was not a fulfillment of the original 1787 design; it was a radical rejection of it.
The Fourteenth Amendment’s repeated command, “No State shall…”, turned the logic of Barron v.
Baltimore on its head.
It announced a new constitutional order where the federal government was no longer the sole entity to be feared, but was now the ultimate guarantor of rights against the states.
The Second Founding did not just update the original house; it fundamentally rewired it, installing a new master circuit breaker in Washington, d+.C., with the Fourteenth Amendment as the universal adapter needed to connect every room.
Part IV: The Adapter’s Flawed Ports: Early Failures and a Critical Rerouting
My moot court disaster began, I now realize, with my failure to grasp the significance of the Slaughter-House Cases.
In my preparation, I had treated the 1873 decision as a historical curiosity, an early misstep.
I failed to see it for what it was: a moment of constitutional trauma that broke the Fourteenth Amendment’s most important component and set American law on a century-long detour.
The universal adapter had been forged in the fire of the Civil War, its purpose clear.
But when it was plugged into the national system for the first time, the Supreme Court issued a ruling that effectively sealed off its main port.
The Slaughter-House Cases (1873): Bricking the Main Port
The case itself did not involve the Bill of Rights directly.
It arose from a Louisiana law that granted a monopoly on the slaughtering of livestock in New Orleans to a single corporation.
A group of excluded butchers sued, arguing that the law deprived them of their “privilege” to practice their trade, violating the Fourteenth Amendment’s Privileges or Immunities Clause.4
In a stunningly narrow 5-4 decision, the Supreme Court rejected their claim.
Justice Samuel Miller, writing for the majority, engineered a distinction that effectively gutted the clause.
He argued that there were two types of citizenship: state and federal.
The vast majority of civil rights, he claimed—including the right to pursue a livelihood—were “privileges and immunities of citizens of the States.” The Fourteenth Amendment, he concluded, only protected the much smaller, and largely undefined, set of rights that were “privileges and immunities of citizens of the United States“.19
These included such things as the right to petition the federal government and use the navigable waters of the United States.18
This interpretation rendered the clause, which was intended by its framers to be the primary vehicle for protecting fundamental rights from state interference, almost completely useless.21
It was a monumental setback for the promise of Reconstruction.
In the language of our analogy, the universal adapter’s main, clearly labeled port—”Privileges or Immunities”—was now “bricked.” The Supreme Court’s opinion was like a bizarre and faulty user manual declaring that this powerful, all-purpose port was only meant for a few obscure accessories you’d almost never use.
For the main appliances that citizens relied on every day—freedom of speech, a fair trial, freedom of religion—this port was now sealed shut.
The Judicial Fear Behind the Decision
Why would the Court so flagrantly ignore the clear intent of the amendment’s framers? The answer lies not in a deep textual analysis, but in a deep-seated judicial fear.
Justice Miller’s opinion reveals a Court terrified of the consequences of fully embracing the Fourteenth Amendment’s revolutionary potential.
He worried that a broad reading of the clause would make the Supreme Court the “perpetual censor upon all legislation of the States”.19
The Court, just eight years removed from the Civil War, recoiled from the prospect of this massive transfer of power.
It was unwilling to take on the role of overseeing every state law that might touch upon a citizen’s rights.
And so, to avoid this radical transformation of American federalism and the judiciary’s role within it, they chose to defuse the amendment’s most powerful charge.
In doing so, however, they created a profound doctrinal problem.
The primary tool designed to nationalize liberty was now broken.
This act of judicial caution forced subsequent generations of lawyers, activists, and judges into a desperate search for a workaround.
If the front door was barred, they would have to find a back window.
This search for an alternative path, a different port on the universal adapter, would define the next century of constitutional law and lead directly to the messy, incremental, and often confusing doctrine of selective incorporation.
The Court’s attempt to prevent one revolution in 1873 inadvertently set the stage for a much slower, but equally profound, revolution to come.
Part V: The Master Key Emerges: The Due Process Clause as the True Universal Port
This was the moment of my epiphany.
Sitting in the law library late one night, surrounded by the wreckage of my failed moot court argument, the pieces suddenly clicked into place.
I had been fixated on the broken “Privileges or Immunities” port, trying to understand why it failed.
But that was the wrong question.
The real story, the hidden blueprint I had been searching for, was not about the failure of one clause, but the ingenious, century-long repurposing of another.
The entire history of incorporation is the story of jurists and lawyers discovering that the universal adapter had a second, less obvious port that could function as a master key.
That master key was the Due Process Clause.
The Slow Pivot to “Liberty” and “Due Process”
The text of the clause is majestic in its simplicity: “…nor shall any State deprive any person of life, liberty, or property, without due process of law”.15
Initially, “due process” was understood primarily in a procedural sense: it meant that the government had to follow fair procedures—give notice, provide a hearing—before taking away someone’s life, liberty, or property.15
It was about ensuring the “appliances” were plugged in correctly and safely.
But after the Slaughter-House Cases bricked the Privileges or Immunities Clause, litigants began to advance a more radical argument.
They contended that the clause also protected certain fundamental rights in a substantive sense.
The word “liberty,” they argued, was not just freedom from physical restraint; it encompassed a broader set of fundamental rights that no state could infringe upon, regardless of the procedure used.15
The Supreme Court began, cautiously at first, to agree.
The turning point came in 1897 with Chicago, Burlington & Quincy Railroad Co. v.
Chicago.4
The case involved the city of Chicago taking railroad property for public use and providing only one dollar in compensation.
The railroad sued, arguing a violation of the Fourteenth Amendment’s Due Process Clause.
The Court agreed, ruling that just compensation for property taken for public use was an essential element of due process.22
Significantly, the Court’s opinion did not explicitly say it was “incorporating” the Fifth Amendment’s Just Compensation Clause.
Instead, it reasoned that the right to just compensation was such a fundamental principle of justice that to deny it was, in itself, a denial of due process of law.3
The Analogy Refined: The “Master Key” Port
This decision was the first sign that another port on the universal adapter might work.
This port, labeled “Due Process,” had a hidden feature.
It wasn’t as direct as the original “Privileges or Immunities” port.
It couldn’t accept all the appliances at once.
But the Court discovered it could function as a master key.
It could accept and power the most fundamental appliances, one by one, by defining their protections as an essential part of “liberty.”
The First Official Connection: Gitlow v. New York (1925)
For the next few decades, the Court continued this approach, recognizing certain rights as fundamental without formally “incorporating” them.
But in 1925, in the case of Gitlow v.
New York, the Court made the connection explicit.
Benjamin Gitlow was a socialist convicted under a New York law for distributing a “Left Wing Manifesto” that advocated for the overthrow of the government.
He argued the law violated his First Amendment rights to freedom of speech and Press.
The Supreme Court upheld his conviction, finding that his speech created a danger to public security.
But in doing so, it made a monumental doctrinal leap.
For the first time, the Court declared that it would “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”.1
This was it.
This was the moment the master key was officially turned in the lock.
Though Gitlow himself lost his case, the principle was established.
The First Amendment “appliance” had been successfully plugged into a state “socket” through the “Due Process” port.
The slow, deliberate, and contentious process of selective incorporation had officially begun.
The workaround had become the main highway.
Part VI: Plugging In the Rights: The Slow, Deliberate Process of Selective Incorporation
Once the Supreme Court established in Gitlow that the Due Process port could function as a master key, the central question of constitutional law became: which keys fit the lock? Which of the Bill of Rights’ “appliances” were so essential that they could be plugged into the states? This launched the era of selective incorporation, a case-by-case process of determining which rights were fundamental enough to be applied against the states.
The “Fundamental Rights” Test: Finding the Right Keys
The Court needed a standard to guide this process, a way to distinguish which rights were essential and which were not.
This standard was most famously articulated by Justice Benjamin Cardozo in the 1937 case of Palko v.
Connecticut.
In that decision, the Court declined to incorporate the Fifth Amendment’s protection against double jeopardy, but in doing so, Cardozo laid out the intellectual framework for all future incorporation cases.
He explained that the Due Process Clause absorbed those rights that are “of the very essence of a scheme of ordered liberty.” The question to be asked, he wrote, was whether a particular right is “so rooted in the traditions and conscience of our people as to be ranked as fundamental”.22
Rights that met this high bar—like freedom of thought and speech—were absorbed, while others that were not seen as essential to a fair trial—like the right to a grand jury indictment—were not.25
This “fundamental rights” or “ordered liberty” test became the guiding principle for the entire project of selective incorporation.
It provided a rationale, albeit a flexible and subjective one, for the Court’s choices.
The Warren Court’s Incorporation Revolution (1953–1969)
For several decades, the process of incorporation proceeded at a slow pace.
But that changed dramatically with the arrival of Chief Justice Earl Warren in 1953.
The Warren Court presided over a veritable revolution in American constitutional law, using the “master key” of the Due Process Clause to plug in nearly all of the procedural safeguards for criminal defendants found in the Fourth, Fifth, and Sixth Amendments.3
This “due process revolution” fundamentally reshaped American criminal justice, transforming what had been a patchwork of state procedures into a national system governed by a uniform set of minimum standards.
The key cases from this era read like a hall of fame of constitutional law:
- Mapp v. Ohio (1961): The Court incorporated the Fourth Amendment’s exclusionary rule, holding that illegally obtained evidence could not be used in state criminal trials, just as it was barred in federal trials.3
- Gideon v. Wainwright (1963): In a landmark unanimous decision, the Court incorporated the Sixth Amendment’s right to counsel, declaring that states must provide a lawyer to any indigent defendant accused of a felony. This decision recognized that a fair trial is impossible without the assistance of competent legal counsel.3
- Malloy v. Hogan (1964): The Court incorporated the Fifth Amendment’s privilege against self-incrimination, preventing states from compelling a defendant to testify against themselves.3
- Miranda v. Arizona (1966): Building directly on the Malloy decision, the Court established the famous “Miranda warnings,” requiring police to inform suspects in custody of their rights, including the right to remain silent and the right to an attorney.13
- Benton v. Maryland (1969): Overruling its earlier decision in Palko, the Court finally incorporated the Fifth Amendment’s protection against double jeopardy, prohibiting states from trying a person twice for the same crime.9
Modern Incorporation: The Process Continues
The incorporation doctrine is not a historical relic; it is a living and evolving area of constitutional law.
The process of testing and plugging in rights has continued into the 21st century, demonstrating the enduring power of the Fourteenth Amendment’s universal adapter.
- McDonald v. Chicago (2010): In a highly anticipated decision, the Court incorporated the Second Amendment’s right to keep and bear arms for the purpose of self-defense, striking down a Chicago handgun ban.23
- Timbs v. Indiana (2019): The Court incorporated the Eighth Amendment’s protection against excessive fines, ruling that the seizure of a $42,000 Land Rover from a man convicted of a drug crime with a maximum fine of $10,000 was unconstitutional.9
These recent cases affirm that the fundamental architecture established over the last century remains firmly in place.
The Due Process Clause of the Fourteenth Amendment continues to serve as the master key through which the fundamental protections of the Bill of Rights are made the law of the entire land.
The Constitutional Adapter: A Catalogue of Incorporated Rights
To visualize this century-long process of legal engineering, it is helpful to lay out the “spec sheet” for our universal adapter.
The following table provides a clear, at-a-glance summary of which Bill of Rights “appliances” have been successfully plugged into the states, through which landmark case, and which remain disconnected.
| Amendment | Right | Incorporated? | Landmark Case(s) | Year(s) |
| First | Establishment of Religion | Yes | Everson v. Board of Education | 1947 |
| Free Exercise of Religion | Yes | Cantwell v. Connecticut | 1940 | |
| Freedom of Speech | Yes | Gitlow v. New York | 1925 | |
| Freedom of the Press | Yes | Near v. Minnesota | 1931 | |
| Right of Assembly & Petition | Yes | DeJonge v. Oregon | 1937 | |
| Second | Right to Keep and Bear Arms | Yes | McDonald v. Chicago | 2010 |
| Third | Quartering of Soldiers | No | (Never decided by Supreme Court) | N/A |
| Fourth | Unreasonable Search & Seizure | Yes | Mapp v. Ohio | 1961 |
| Warrant Requirement | Yes | Aguilar v. Texas | 1964 | |
| Fifth | Grand Jury Indictment | No | (Hurtado v. California, 1884) | N/A |
| Double Jeopardy | Yes | Benton v. Maryland | 1969 | |
| Self-Incrimination | Yes | Malloy v. Hogan | 1964 | |
| Just Compensation for Takings | Yes | Chicago, B. & Q. R.R. v. Chicago | 1897 | |
| Sixth | Speedy Trial | Yes | Klopfer v. North Carolina | 1967 |
| Public Trial | Yes | In re Oliver | 1948 | |
| Trial by Impartial Jury | Yes | Parker v. Gladden | 1966 | |
| Notice of Accusation | Yes | In re Oliver | 1948 | |
| Confrontation of Witnesses | Yes | Pointer v. Texas | 1965 | |
| Compulsory Process | Yes | Washington v. Texas | 1967 | |
| Right to Counsel | Yes | Gideon v. Wainwright | 1963 | |
| Seventh | Jury Trial in Civil Cases | No | (Never incorporated) | N/A |
| Eighth | Excessive Bail | Yes | Schilb v. Kuebel | 1971 |
| Excessive Fines | Yes | Timbs v. Indiana | 2019 | |
| Cruel and Unusual Punishment | Yes | Robinson v. California | 1962 |
Data compiled from sources.3
Part VII: The Great Engineering Debate: Total vs. Selective Blueprints
The gradual, case-by-case process of selective incorporation was not without its critics.
For decades, a fierce intellectual battle raged within the Supreme Court over the proper way to use the universal adapter.
This was not a minor technical dispute; it was a fundamental disagreement about the nature of the Fourteenth Amendment, the role of judges, and the balance of power in the American federal system.
This great engineering debate is best personified by the titanic clash between two judicial giants: Justice Hugo Black and Justice Felix Frankfurter.
The Battleground: Adamson v. California (1947)
The primary battleground for their competing philosophies was the 1947 case of Adamson v.
California.28
The case involved a defendant whose refusal to testify was used by the prosecutor as evidence of his guilt, a practice allowed under California law at the time.
The defendant argued this violated his Fifth Amendment right against self-incrimination, as applied to the states through the Fourteenth Amendment.
The Court’s majority, adhering to the Palko standard, ruled against Adamson, finding that the right against self-incrimination was not “implicit in the concept of ordered liberty” and therefore not binding on the states.
But the true significance of the case lies in the powerful competing opinions of Justice Black in dissent and Justice Frankfurter in concurrence.
Justice Hugo Black’s “Plug-and-Play” Blueprint
Justice Hugo Black was the champion of total incorporation.
In a long, impassioned dissent in Adamson, backed by a 31-page appendix of historical research, he argued that the selective approach was wrong.5
Based on his reading of the congressional debates surrounding the Fourteenth Amendment, Black concluded that the framers’ primary object was to make the
entire Bill of Rights applicable to the states.22
He believed the Fourteenth Amendment was intended to be a complete and total reversal of the
Barron v.
Baltimore decision.32
In our analogy, Justice Black was the engineer who had studied the original blueprints and insisted the universal adapter was designed to be “plug-and-play.” He argued that you didn’t need to cautiously test each appliance one by one.
The adapter’s design guaranteed that all of them—the first eight amendments—were meant to work automatically in any state socket.
His goal was a simple, clear, universal standard based on what he saw as the original design.
Justice Felix Frankfurter’s “Cautious Electrician” Approach
Justice Felix Frankfurter, the Court’s leading advocate for judicial restraint, vehemently disagreed.
In his concurring opinion, he defended the selective, case-by-case approach.35
He argued that the Due Process Clause has an independent meaning, tied to evolving standards of “fundamental fairness” and decency that are not limited to the specific guarantees of the Bill of Rights.38
Frankfurter feared that total incorporation would be a radical act of judicial activism.
He warned that forcing the specific, and sometimes archaic, procedures of the Bill of Rights onto all 50 states would “tear up by the roots much of the fabric of law in the several States” and improperly interfere with their ability to experiment with their own legal systems.37
Frankfurter was the cautious electrician.
He warned that just because an appliance can be plugged in doesn’t mean it should be.
He argued for testing each one individually, ensuring it was truly essential and compatible with the state’s existing “wiring.” For Frankfurter, the priority was maintaining the stability of the overall federal system, not achieving perfect, universal compatibility for every single appliance.
The Deep Irony of “Judicial Activism”
The clash between Black and Frankfurter reveals a profound irony that turns our conventional understanding of judicial philosophy on its head.
We typically think of “judicial activism” as judges imposing their own values to create new rights, while “judicial restraint” means sticking closely to the constitutional text.
By this measure, Black’s position was the true philosophy of restraint.
He wanted to bind judges to the specific, enumerated text of the first eight amendments—no more, no less.
He saw the flexible “ordered liberty” standard as a dangerous “natural law” formula that allowed judges to roam freely, picking and choosing rights based on their personal, subjective sense of what was fair.32
Conversely, Frankfurter, the great champion of judicial restraint, advocated for a standard that grants judges enormous discretion.
The “fundamental fairness” test requires judges to look beyond the text and make a value judgment about which rights are important enough to apply to the states.
Ultimately, a modified version of Frankfurter’s selective approach won the day.
Total incorporation has never commanded a majority on the Court.25
Yet, over time, the Warren Court’s aggressive use of the selective approach achieved a result that looks very much like Black’s vision.
The prevailing doctrine is thus a victory for a philosophy that empowers judicial judgment, but it has been wielded to achieve an outcome that nationalized liberty in a way that would have made Justice Black proud.
Part VIII: The Incompatible Plugs: Why Some Rights Remain Unincorporated
While the process of selective incorporation has made most of the Bill of Rights applicable to the states, a few notable exceptions remain.
These “unincorporated” rights are the constitutional outliers, the “appliances” whose plugs have been deemed incompatible with the universal adapter’s master key port.
Understanding why they have been left out reveals the pragmatic limits of the constitutional revolution wrought by the Fourteenth Amendment.
The Unincorporated Rights
Three provisions of the Bill of Rights have not been fully incorporated against the states:
- Third Amendment (Quartering of Soldiers): “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”
- Reason for Non-Incorporation: This amendment is a product of its time, born from the specific grievance of British troops being forcibly housed in colonists’ homes.40 It has been the subject of almost no litigation, and the Supreme Court has never had an occasion to rule on its incorporation. While a lower federal court has suggested it
would be incorporated if a relevant case arose, its practical irrelevance in modern society has left it in a state of constitutional limbo.41 - Analogical Explanation: This is the “antique appliance.” Its plug is so specific to a historical problem that there is simply no modern need to plug it into any outlet, state or federal.
- Fifth Amendment (Right to a Grand Jury Indictment): “…unless on a presentment or indictment of a Grand Jury…”
- Reason for Non-Incorporation: This is the most significant unincorporated right in criminal procedure. In the 1884 case of Hurtado v. California, the Supreme Court held that a grand jury indictment is not essential to due process of law.44 The Court reasoned that states could provide due process through other means, such as a preliminary hearing before a judge or the filing of a formal accusation by a prosecutor (an “information”).46 This decision, which predates the entire modern era of selective incorporation, has been heavily criticized but never overturned.44
- Analogical Explanation: This appliance’s plug is considered a matter of “procedural preference.” The universal adapter’s job is to ensure the appliance gets power (a fundamentally fair process for charging someone with a serious crime), but it doesn’t mandate the specific shape of the plug. States are allowed to use their own compatible plugs (like prosecutorial informations) as long as they deliver the same essential power.
- Seventh Amendment (Right to a Jury Trial in Civil Cases): “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved…”
- Reason for Non-Incorporation: The Supreme Court has consistently held that the Seventh Amendment’s guarantee of a jury trial in certain civil cases applies only to federal courts and is not a fundamental right that must be applied to the states.1 The reasoning is rooted in principles of federalism and the fact that states have diverse and long-standing legal traditions for handling civil disputes, many of which do not rely on juries to the same extent as the federal system.51
- Analogical Explanation: Much like the grand jury right, this is an appliance where states are allowed to have their own models and power standards. The universal adapter is deemed unnecessary because each state’s “house” is considered to have its own well-established and adequate system for handling these civil “appliances.”
The existence of these unincorporated rights demonstrates that even the “Second Founding” had its limits.
The Supreme Court, while nationalizing the core substantive liberties that define a fair and just society, ultimately drew a line.
It distinguished between rights essential to the substance of justice (like the right to a lawyer, the right to speak freely, the right to be free from unreasonable searches) and the specific mechanisms or procedures for administering the justice system (how you are charged, whether a jury decides your civil lawsuit).
This reflects a persistent, pragmatic deference to state autonomy in the nuts-and-bolts of running their own courts—a faint but enduring echo of the federalist caution that so animated the Court in the Slaughter-House Cases.
The revolution, it turns out, stopped at the courthouse door.
Part IX: Conclusion: From a Messy Patchwork to an Elegant System
Years after my moot court humiliation, I was in a constitutional law seminar discussing the Eighth Amendment.
The professor posed a question about a case making its way through the lower courts, a case that would eventually become Timbs v.
Indiana.
It involved a state seizing a man’s expensive vehicle over a minor drug offense, and the question was whether the Eighth Amendment’s protection against excessive fines applied to the states.
The old confusion and panic were gone.
In their place was a sense of clarity, a quiet confidence born not of memorized rules, but of a coherent mental model.
I saw the problem not as a jumble of precedents, but as a simple engineering question.
The Excessive Fines Clause was clearly a fundamental “appliance,” a core protection against government overreach deeply rooted in Anglo-American legal traditions dating back to Magna Carta.
The universal adapter—the Fourteenth Amendment—was in place.
The master key port—the Due Process Clause—had been used successfully for nearly every other major appliance.
It was not a matter of if the Supreme Court would plug this right into the states, but when.
I laid out the logic, the history, the framework.
It was the argument I wish I could have made all those years ago.
The journey to understand the incorporation doctrine is a journey to the heart of the American constitutional story.
It is a story that begins with a flawed blueprint, a power grid designed for a world that no longer existed after the cataclysm of the Civil War.
It is the story of a “Second Founding,” a moment of profound crisis and revolutionary engineering that produced a new tool: the Fourteenth Amendment, our universal adapter for liberty.
We have traced the dramatic history of that tool: how its intended main port was broken almost immediately by a Supreme Court fearful of its power; how a new master key was discovered in the unassuming language of due process; and how, over the next century, a procession of jurists, lawyers, and litigants painstakingly tested and connected the essential appliances of freedom, one by one.
We have seen the great debate between the engineers—Black’s “plug-and-play” vision versus Frankfurter’s cautious, case-by-case approach—and how that debate shaped the very meaning of justice in America.
The incorporation of the Fourteenth Amendment is not a messy, illogical series of accidents.
It is the coherent, if complex and dramatic, story of how the American people remade their own Constitution.
It is the story of forging a powerful instrument to nationalize liberty, and of how generations of legal minds learned, through trial, error, and fierce debate, exactly how to use it.
The framework of the universal adapter transforms the chaos into a coherent narrative, revealing the elegant, underlying logic of one of the most profound and important transformations in the history of law.
It is the blueprint that finally makes sense of it all.
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