Jonah Patel
Incorporation is a constitutional doctrine in the United States through which parts of the Bill of Rights are made applicable to the states. Prior to the passage of the Fourteenth Amendment, the Bill of Rights only applied to the federal government, and the Supreme Court held that its protections did not extend to state governments. However, after the Fourteenth Amendment, the Supreme Court interpreted the Due Process Clause as imposing certain limitations on the states, leading to the incorporation of specific rights from the Bill of Rights. This process, known as selective incorporation, has been applied on a case-by-case basis, with the Supreme Court incorporating rights such as freedom of speech, freedom of religion, and protection against self-incrimination.
| Characteristics | Values |
|---|---|
| Definition | Incorporation is the doctrine by which portions of the Bill of Rights have been made applicable to the states. |
| Bill of Rights | The first ten amendments to the Constitution, protecting certain rights belonging to individuals and states against infringement by the federal government. |
| Applicability | The Bill of Rights was initially only applicable to the federal government and federal court cases. |
| Fourteenth Amendment | The Fourteenth Amendment applies key Bill of Rights protections (like free speech and religious liberty) to abuses by state governments. |
| Due Process Clause | The Fourteenth Amendment's Due Process Clause prohibits states from depriving their citizens of rights contained in the Bill of Rights. |
| Privileges or Immunities Clause | The Privileges or Immunities Clause of the Fourteenth Amendment also applies to the states, but its effectiveness was limited by the Slaughter-House Cases. |
| Selective Incorporation | The Supreme Court selectively incorporates rights that it deems essential to due process, rather than incorporating entire amendments. |
| Non-Incorporated Amendments | The Ninth and Tenth Amendments have not been incorporated and are unlikely to be due to their nature and the Supreme Court's reluctance to rely on them. |
| Examples of Incorporated Rights | Freedom of speech, freedom of religion, right against self-incrimination, right to a public trial, freedom of expressive association, etc. |
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What You'll Learn
The Bill of Rights
In United States constitutional law, incorporation is the doctrine by which portions of the Bill of Rights are made applicable to the states. The Bill of Rights, comprising the first ten amendments to the Constitution, protects certain rights belonging to individuals and states against infringement by the federal government.
When the Bill of Rights was first proposed in 1787 and ratified in 1789/1791, the general understanding was that these rights applied only to protections from the federal government. The Supreme Court affirmed this interpretation in Barron v. Baltimore in 1833, holding that the Bill of Rights did not place limitations on the authority of the states and their local governments. Thus, for much of American history, the Bill of Rights did not play the central role that it does today.
However, this changed with the ratification of the Fourteenth Amendment in 1868, following the Civil War. The Fourteenth Amendment included the Due Process Clause, which states that no state shall "deprive any person of life, liberty, or property, without due process of law". The Supreme Court has interpreted this clause to impose on the states many of the Bill of Rights' limitations, a process known as incorporation. This interpretation was first established in the 1886 case of Presser v. Illinois and has been applied in numerous cases since, including the 1925 case of Gitlow v. New York, which concerned freedom of speech and press.
Incorporation applies both procedurally and substantively to the guarantees of the states. For example, procedurally, only a jury can convict a defendant of a serious crime due to the incorporation of the Sixth Amendment jury trial right. Substantively, states must recognise the First Amendment prohibition against establishing an official religion, regardless of whether state laws and constitutions offer such a prohibition.
It is important to note that not all protections in the Bill of Rights have been incorporated, and the Supreme Court has chosen to selectively incorporate certain rights on a case-by-case basis. For instance, the Ninth and Tenth Amendments have not been incorporated and likely will not be. Additionally, there is contention over whether the Fourteenth Amendment should incorporate any substantive rights, with opinions ranging from complete to no incorporation.
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The Fourteenth Amendment
In United States constitutional law, incorporation is the doctrine through which portions of the Bill of Rights are made applicable to the states. The Bill of Rights, comprising the first ten amendments of the United States Constitution, was added to the Constitution in 1791. Initially, its protections applied only to the federal government and federal court cases.
Following the ratification of the Fourteenth Amendment, the Supreme Court, through a series of cases, applied parts of the Bill of Rights to the states. This process is known as incorporation. The Supreme Court supported selectively incorporating rights that it deemed essential to due process, rather than incorporating entire amendments. This process of selective incorporation has been a source of contention, with opinions from Supreme Court justices ranging from complete to no incorporation.
Gradually, the Supreme Court incorporated most of the significant provisions of the Bill of Rights against the states. For example, the Sixth Amendment jury trial right has been incorporated against the states, so that only a jury can convict a defendant of a serious crime. Substantively, states must recognize the First Amendment prohibition against a state-established religion, regardless of whether state laws and constitutions offer such a prohibition.
In summary, the Fourteenth Amendment's Due Process Clause and Privileges or Immunities Clause have been central to the process of incorporation, through which the Bill of Rights has become a powerful charter of national freedom, applying to abuses by all levels of government: national, state, and local.
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Due Process Clause
The Due Process Clause of the Fourteenth Amendment prohibits states from depriving their citizens of certain privileges and protections contained in the Bill of Rights. The Fourteenth Amendment, ratified in 1868 after the Civil War, wrote the Declaration of Independence's promise of freedom and equality into the U.S. Constitution.
The Due Process Clause of the Fourteenth Amendment differs from the Due Process Clause of the Fifth Amendment in that it explicitly applies to the states. The Fifth Amendment Takings Clause was incorporated in Chicago, Burlington, and Quincy Railroad v. City of Chicago (1897), where the Supreme Court required some form of just compensation for property appropriated by state or local authorities.
The incorporation doctrine is a constitutional doctrine through which parts of the first ten amendments of the United States Constitution (known as the Bill of Rights) are made applicable to the states through the Due Process Clause of the Fourteenth Amendment. Incorporation applies both substantively and procedurally. For instance, procedurally, only a jury can convict a defendant of a serious crime since the Sixth Amendment jury-trial right has been incorporated against the states. Substantively, for example, states must recognize the First Amendment prohibition against a state-established religion, regardless of whether state laws and constitutions offer such a prohibition.
The Supreme Court supported selectively incorporating rights that it found to be essential to due process, rather than incorporating all of the Bill of Rights. Some argue that the Privileges or Immunities Clause is a more appropriate textual basis than the Due Process Clause for the incorporation of the Bill of Rights. However, the Supreme Court has rejected any incorporation under the Privileges or Immunities Clause.
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Incorporation against state abuses
The incorporation doctrine is a constitutional doctrine that applies parts of the first ten amendments of the United States Constitution (known as the Bill of Rights) to the states. This is done through the Due Process Clause of the Fourteenth Amendment.
However, this changed after the Civil War, with the passage of the Fourteenth Amendment. The Fourteenth Amendment wrote the Declaration of Independence's promise of freedom and equality into the U.S. Constitution. Through this amendment, the drafters sought to protect citizens from state abuses of key Bill of Rights protections. The Supreme Court, through a series of cases, began to apply parts of the Bill of Rights to the states, a process known as selective incorporation.
Selective incorporation has had a significant impact on safeguarding individual rights in the United States. It ensures that the Bill of Rights extends to all levels of government, protecting citizens' rights from potential state abuses. For example, the First Amendment's protections of freedom of speech, religion, and the press have been selectively incorporated and are applicable to the states. This means that state and local governments cannot enact laws that infringe upon these fundamental freedoms.
The incorporation revolution in the 1960s further solidified these protections. The Warren Court applied several key constitutional protections against state abuses, including the federal exclusionary rule in Fourth Amendment cases ("Mapp v. Ohio"), the Sixth Amendment's right to counsel ("Gideon v. Wainwright"), the Fifth Amendment's right against self-incrimination ("Malloy v. Hogan"), and the Eighth Amendment's ban on cruel and unusual punishments ("Robinson v. California"). These cases strengthened the protections of individual liberties and ensured that government actions adhere to the principles enshrined in the Bill of Rights.
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Selective incorporation
In the United States, incorporation is a constitutional doctrine that applies parts of the Bill of Rights to individual US states. The Bill of Rights, the first ten amendments of the US Constitution, was added to the Constitution in 1791, and initially only applied to the federal government.
In the post-Civil War era, the Thirteenth, Fourteenth, and Fifteenth Amendments were added to the Constitution, abolishing slavery, granting citizenship and equal protection under the law to formerly enslaved people, and guaranteeing the right to vote regardless of race, respectively. The Fourteenth Amendment, ratified in 1868, extended equal protection and due process to all persons in the United States.
The Supreme Court first applied selective incorporation in 1925, in Gitlow v. New York, where the Court applied the First Amendment's protection of freedom of speech and freedom of the press against the states. The Court built on this framework in a series of Fourteenth Amendment rulings that struck down state laws restricting speech, press, and assembly rights. The Court has also applied selective incorporation to state criminal procedures, such as in Miranda v. Arizona (1966), which held that law enforcement must advise persons in custody of their right to remain silent.
Some argue that the Privileges or Immunities Clause is a more appropriate textual basis than the Due Process Clause for incorporation of the Bill of Rights. However, in the Slaughter-House Cases (1873), the Supreme Court ruled that the Privileges or Immunities Clause was not designed to protect individuals from state government actions.
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Frequently asked questions
Incorporation is a constitutional doctrine that applies parts of the Bill of Rights to the states through the Due Process Clause of the Fourteenth Amendment.
The Fourteenth Amendment, which was ratified in 1868, prohibits states from depriving their citizens of certain privileges and protections contained in the Bill of Rights. This expanded the Bill of Rights beyond the Federal government, making it a powerful charter of national freedom.
Selective incorporation refers to the practice of applying parts of the Bill of Rights to states on a case-by-case basis. The Supreme Court has chosen to selectively incorporate certain rights, rather than incorporating entire amendments at once.
Some examples of the application of the doctrine of incorporation include:
- Gitlow v. New York (1925): The Court applied the First Amendment's protection of freedom of speech and press against the states.
- Cantwell v. Connecticut (1940): The Court expanded the doctrine to include the First Amendment's Free Exercise Clause.
- Chicago, Burlington & Quincy Railroad v. City of Chicago (1897): The Supreme Court incorporated the Fifth Amendment's Takings Clause, requiring just compensation for property appropriated by state or local authorities.
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