Malcolm Rivera
The incorporation doctrine 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 Bill of Rights, comprising the first ten amendments to the US Constitution, initially only applied to the federal government and federal court cases. The Supreme Court has interpreted the Fourteenth Amendment’s Due Process Clause to impose on the states many of the Bill of Rights’ limitations, a doctrine sometimes called incorporation against the states through the Due Process Clause. This process, known as selective incorporation, has been used to apply key Bill of Rights protections like free speech and religious liberty to the states on a case-by-case basis.
| Characteristics | Values |
|---|---|
| The incorporation doctrine ensures | The Bill of Rights applies to both the federal government and the states |
| The doctrine applies | Both substantively and procedurally |
| The doctrine applies to | The first ten amendments of the United States Constitution (known as the Bill of Rights) |
| The doctrine applies through | The Fourteenth Amendment's Due Process clause |
| The doctrine protects | Rights of all citizens |
| The doctrine applies to | Parts of the Bill of Rights |
| The doctrine does not apply to | The Ninth and Tenth Amendments |
| The doctrine includes rights such as | Freedom of speech, freedom of religion, freedom of assembly, freedom of expressive association, protection against excessive bail, protection against excessive fines, protection against cruel and unusual punishments, right to counsel, right to confront hostile witnesses, and more |
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What You'll Learn
The Bill of Rights
In the early years of the Republic, both Congress and the Supreme Court believed that the Bill of Rights restricted only the federal government, not the states. Indeed, when Congress was considering the constitutional amendments that later became the Bill of Rights, the Senate rejected an amendment that would have applied to the states, reading:
> The equal rights of conscience, the freedom of speech or of the press, and the right of trial by jury in criminal cases shall not be infringed by any State.
However, the Supreme Court has since interpreted the Fourteenth Amendment's Due Process Clause to impose on the states many of the Bill of Rights' limitations. This is called the incorporation doctrine, a constitutional principle that applies parts of the Bill of Rights to the states through the Due Process Clause of the Fourteenth Amendment. This process of applying key Bill of Rights protections against state abuses is also known as selective incorporation.
The doctrine of incorporation ensures that the Bill of Rights applies to both the federal government and the states, protecting the rights of all citizens. The Supreme Court has held that many provisions of the Bill of Rights bind the states, but there are some provisions that the Court has not applied to the states. The Ninth and Tenth Amendments, for example, have not been incorporated, and it is unlikely that they ever will be.
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The Fourteenth Amendment
Before the Fourteenth Amendment was ratified, the Bill of Rights only protected citizens from abuses by the federal government, not by state governments. The Fourteenth Amendment changed this by ensuring that the Bill of Rights applied to both the federal government and the states, thus protecting the rights of all citizens.
In deciding whether the Fourteenth Amendment incorporated a specific right against the states, the Court asks whether the right at issue is both 'fundamental to our scheme of ordered liberty' and 'deeply rooted in this Nation's history and tradition'.
Through the Fourteenth Amendment, drafters sought to protect the American people, in part, from state abuses of key Bill of Rights protections like religious liberty and free speech.
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Due Process Clause
The Due Process Clause of the Fourteenth Amendment asserts that no state shall deprive any person of life, liberty, or property without due process of law. This clause has been interpreted to impose on the states many of the limitations outlined in the Bill of Rights, a doctrine sometimes referred to as "incorporation against the states through the Due Process Clause".
The Due Process Clause has been used to incorporate parts of the Bill of Rights—the first ten amendments to the Constitution—against the states, applying them to state governments as well as the federal government. This is known as the doctrine of "selective incorporation", which holds that the Due Process Clause incorporates the text of certain provisions of the Bill of Rights.
The Supreme Court has elaborated on the original understanding of the Due Process Clause, and the rights protected under the Fourteenth Amendment can be understood in three categories: "procedural due process", the individual rights listed in the Bill of Rights, "incorporated" against the states, and "substantive due process".
Procedural due process concerns the procedures that the government must follow before depriving an individual of life, liberty, or property. Historically, due process entailed a jury trial, with the jury determining the facts and the judge enforcing the law.
The doctrine of incorporation is far less controversial than substantive due process, which continues to foment political controversy. While some current justices would extend substantive due process, others would scale it back or drop it entirely.
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Selective incorporation
When the Bill of Rights was added to the US Constitution in 1791, its protections only applied to the federal government and not state governments. This changed in 1868 during Reconstruction when Congress ratified the Fourteenth Amendment, extending equal protection and due process to all persons in the United States. While the Amendment was primarily intended to protect the rights of newly freed people, citizens began to seek the Supreme Court's review of state laws and procedures they believed infringed on other rights under the Bill of Rights.
The Supreme Court uses selective incorporation to protect people from state infringements on Constitutional rights, such as freedom of speech, and this process became more prominent under Chief Justice Earl Warren (1953-1969). During this time, many challenges to state laws and practices under criminal laws were brought to the Court. For example, in Miranda v. Arizona (1966), the Court held that law enforcement must advise people in custody of their right to remain silent, incorporating the Fifth Amendment's protection against self-incrimination.
The "selective" part of the term refers to the US Supreme Court's case-by-case approach to deciding which portions of the Bill of Rights apply to states. This is in contrast to the incorporation doctrine, which refers to the general concept that states cannot deny citizens the protections mentioned in the Bill of Rights.
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Federal vs. State
The incorporation doctrine is a constitutional principle that applies parts of the Bill of Rights to individual states through the Due Process clause of the Fourteenth Amendment. The Bill of Rights, comprising the first ten amendments to the US Constitution, was initially only applied to the federal government and federal court cases.
The Supreme Court has interpreted the Fourteenth Amendment's Due Process Clause to impose on the states many of the Bill of Rights' limitations, a doctrine sometimes called "incorporation against the states". This process of applying key Bill of Rights protections against state abuses is often referred to as selective incorporation.
The doctrine ensures that the Bill of Rights applies to both the federal government and the states, protecting the rights of all citizens. For example, the right to counsel (Gideon v. Wainwright, 1963), freedom of speech (Gitlow v. New York, 1925), and freedom of religion (Everson v. Board of Education, 1947).
However, it is important to note that not all amendments have been incorporated. The Ninth and Tenth Amendments, for instance, have not been incorporated and are unlikely to be in the future. The text of the Tenth Amendment directly interacts with state law, and the Ninth Amendment is rarely relied upon by the Supreme Court in its decisions.
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Frequently asked questions
The incorporation doctrine is a constitutional principle that applies parts of the Bill of Rights to the states through the Due Process clause of the Fourteenth Amendment.
The Bill of Rights comprises the first ten amendments to the US Constitution. It protects certain rights belonging to individuals and states against infringement by the federal government.
The Due Process clause of the Fourteenth Amendment states that no state shall deprive any person of life, liberty, or property without due process of law.
Selective incorporation is the case-by-case process of applying key Bill of Rights protections against state abuses.
Reverse incorporation is when the Supreme Court uses state law to fill in gaps in its decisions.
