Why did the supreme court expand the incorporation of the bill of rights?

When the Bill of Rights was proposed in 1787 and ratified in 1789, the general understanding was that these rights applied only to protections from the federal government.  The only governmental institution mentioned in the Bill of Rights is Congress.   The Supreme Court of the United States had an opportunity to apply the Bill of Rights to state governments in the 1833 case of Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833), but declined to do so.

When the Fourteenth Amendment was ratified by the states in 1868, many thought that the plain language interpretation of the amendment was that the Bill of Rights now applied to the states as well as the federal government:

Section 1 (Fourteenth Amendment).  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. (emphasis added)

However, in the Slaughterhouse cases of 1873, the Supreme Court of the United States (the Court) appeared to shut the door on the application of the Bill of Rights to state governments. (For a description of the cases, go to www.oyez.org/cases/1850-1900/83us36.)  The Court held that the privileges and immunities clause of the 14th Amendment did not purport to extend the protections of the Bill of Rights to matters involving state governments.

Then, starting in 1897 and throughout the 20th century, the Court issued a series of decisions that held that the due process and equal protections clauses of the 14th Amendment did apply to state governments as well other governmental entities such as schools.  (It was not until the 2010 case of McDonald v. City of Chicago that the Court broached the subject of the privileges and immunities clause as being applicable to the states, but the majority of the Court held that the Slaughterhouse cases were still good law and chose to incorporate the Second Amendment as the right to due process.)  This case by case approach to finding that the rights found in the Bill of Rights applied to the states through the 14th Amendment is the Doctrine of Incorporation, and more specifically, the Doctrine of Selective Incorporation.  Through incorporation, state governments are held to the same standards as the federal government with regard to many constitutional rights.

Background information on Selective Incorporation

Bill of Rights ProvisionCaseYearFirst Amendment—freedom of speechGitlow v. New York, 268 U.S. 6521925First Amendment—freedom of pressNear v. Minnesota, 283 U.S. 6971931First Amendment—freedom of assemblyDeJonge v. Oregon, 299 U.S. 3531937First Amendment—free exercise of religionCantwell v. Connecticut, 310 U.S. 2961940First Amendment—guarantee against an establishment of religionEverson v. Board of Education, 330 U.S. 11947Second Amendment—right to bear armsMcDonald v. City of Chicago2010Third Amendment—right not to be forced to quarter soldiers.Not incorporated. The Supreme Court of the United States has never heard a Third Amendment case.Fourth Amendment—the right to be free from unreasonable searches and seizuresWolf v. Colorado, 338 U.S. 251949Fourth Amendment—the Exclusionary RuleMapp v. Ohio, 367 U.S. 6431961Fourth Amendment—what is reasonable as to a warrantless searchKer v. California, 374 U.S. 231963Fourth Amendment—warrant requirementAguilar v. Texas, 378 U.S. 1081964Fifth Amendment—the takings clause i.e. just compensation for the government taking propertyChicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 2261897Fifth Amendment—protection against double jeopardyBenton v. Maryland, 395 U.S. 7841969Fifth Amendment—right to a grand juryNot incorporated.Fifth Amendment—right not to incriminate oneselfMalloy v. Hogan , 378 U.S. 11964Sixth Amendment—right to a public trialIn re Oliver, 333 U.S. 2571948Sixth Amendment—right to a speedy trialKlopfer v. North Carolina, 386 U.S. 2131967Sixth Amendment—right to confront witnessesPointer v. Texas, 380 U.S. 4001965Sixth Amendment—right to counselPowell v. Alabama 287 U.S. 45 for capital cases,1932Sixth Amendment—right to counselGideon v. Wainwright, 372 U.S. 335 for all felony cases1963Sixth Amendment—right to counselArgersinger v. Hamlin, 407 U.S. 25 for imprisonable misdemeanors1972Sixth Amendment—right to a trial by an impartial juryParker v. Gladden, 385 U.S. 3631966Sixth Amendment—right to know what crimes you have been charged withIn re Oliver, 333 U.S. 2571948Sixth Amendment—right to subpoena witnesses to testify at trialWashington v. Texas, 388 U.S. 141967Seventh Amendment—right to a jury trial in a civil matter. Has not been incorporated.Not incorporated.Eighth Amendment—right to be free from cruel and unusual punishmentRobinson v. California, 370 U.S. 6601972Eighth Amendment—protections against excessive bail or excessive fines.Not incorporated.

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