Question

How has the Supreme Court influenced the process of incorporating the Bill of Rights?

Explain how Palko and Duncan changed the Supreme Court’s approach to selective incorporation.

Answer 1

Short answer
- The Court has used the Fourteenth Amendment’s Due Process Clause to make most of the Bill of Rights apply to the states — a process called incorporation. Early on the Court adopted a selective-incorporation approach (incorporate rights one by one if “fundamental”), and over the mid-20th century gradually incorporated most Bill of Rights protections.
- Palko v. Connecticut (1937) articulated and justified the selective-incorporation test (only rights “implicit in ordered liberty” are applied to the states) and refused to incorporate the Double Jeopardy Clause.
- Duncan v. Louisiana (1968) applied selective incorporation to hold that the Sixth Amendment right to a jury trial is fundamental and thus applicable to the states. Together with later cases (most notably Benton v. Maryland, 1969, which overruled Palko as to double jeopardy), Duncan marked the Court’s movement from a narrow, cautious application of Palko toward near‑complete incorporation of the Bill of Rights.

A bit more detail

1) The incorporation question
- The Fourteenth Amendment says no state may deprive any person of life, liberty, or property without due process of law. Starting in the 1920s–30s the Court began reading aspects of the Bill of Rights into that Due Process protection so those rights would bind the states as well as the federal government.

2) Palko v. Connecticut (1937)
- Holding: The Fifth Amendment Double Jeopardy Clause did not apply to the states, so Palko’s second prosecution was permissible under Connecticut law.
- Reasoning/standard: Justice Cardozo said only those rights “implicit in the concept of ordered liberty” and “of the very essence of a scheme of ordered liberty” are incorporated. That formulation established selective incorporation — not all Bill of Rights protections automatically applied to the states; each right must be tested for fundamentality.
- Effect: Palko set a conservative, case‑by‑case standard and rejected the competing theory of total incorporation (the view that the Fourteenth Amendment makes all of the first eight/amendments applicable to the states).

3) Duncan v. Louisiana (1968)
- Holding: The Sixth Amendment right to a jury trial for serious offenses is fundamental and therefore applicable to the states through the Fourteenth Amendment.
- How it changed things: Duncan applied the selective-incorporation approach to expand state obligations; it is one of several mid‑20th-century decisions (Gideon, Mapp, Miranda, etc.) that steadily incorporated most major Bill of Rights protections. While Duncan relied on the fundamental‑rights inquiry that Palko had articulated, it demonstrated a willingness to find more protections “fundamental.”
- Immediate aftermath: Within a year the Court in Benton v. Maryland (1969) explicitly incorporated the Double Jeopardy Clause and thereby overruled Palko’s result — signaling that the Palko framework would not block incorporation of most core guarantees.

Bottom line
Palko gave the Court the selective-incorporation test (only fundamental rights apply to the states). Duncan applied that approach to incorporate the jury-trial right and, together with a string of mid-century decisions, showed the Court moving from cautious selectivity toward near‑complete incorporation of the Bill of Rights — a development completed in practice when Benton overruled Palko on double jeopardy and most other protections had already been incorporated.