Incorporation Doctrine: Understanding The Constitution's Dynamic Nature

The doctrine of incorporation 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, which consists of the first ten amendments to the US Constitution, initially only applied to the federal government and federal court cases. However, through a series of Supreme Court decisions, particularly in the post-Civil War era, various portions of the Bill of Rights have been interpreted to be applicable to both state and local governments, a concept known as selective incorporation. This doctrine ensures that the rights of all citizens are protected, regardless of the level of government. While most provisions of the Bill of Rights have been incorporated, some, such as the Ninth and Tenth Amendments, have not and are unlikely to be incorporated in the future.

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The Bill of Rights

Prior to the Fourteenth Amendment, the Bill of Rights only applied to the federal government and federal court cases. The Supreme Court noted that the Bill of Rights was intended to limit only the federal government. However, after the Fourteenth Amendment was ratified in 1868, the Supreme Court changed course, interpreting the Fourteenth Amendment's Due Process Clause as prohibiting states from depriving their citizens of certain privileges and protections contained in the Bill of Rights.

The doctrine of incorporation is also known as selective incorporation, as the Supreme Court has selectively incorporated rights that it deems essential to due process, rather than incorporating entire amendments. The Supreme Court has held that if a provision of the Bill of Rights is incorporated against the states, the provision imposes the same substantive limitations on the states and the federal government. This interpretation has been contested, with Supreme Court justices holding a range of opinions on the degree of incorporation of substantive rights.

The Ninth and Tenth Amendments have not been incorporated and are unlikely to be. The Fourteenth Amendment has vastly expanded civil rights protections and is cited in more litigation than any other amendment to the US Constitution.

The Fourteenth Amendment

The doctrine of incorporation is a constitutional doctrine that makes parts of the first ten amendments of the United States Constitution (known as the Bill of Rights) applicable to the states through the Due Process Clause of the Fourteenth Amendment. The doctrine applies both substantively and procedurally.

Before the Fourteenth Amendment and the doctrine of incorporation existed, the Supreme Court found that the Bill of Rights only applied to the federal government and federal court cases. During the signing of the Constitution, every state in the negotiation had different levels of concern regarding a too-powerful federal government. The preamble to the Bill of Rights highlights the importance of limiting the power of the newly created government. The Supreme Court noted that the Bill of Rights was intended to limit only the federal government.

After the passage of the Fourteenth Amendment, the Supreme Court, through a series of cases, found that the Due Process Clause of the Fourteenth Amendment included applying parts of the Bill of Rights to states. This application of rights to states is referred to as "incorporation". There is a lot of contention surrounding whether the Fourteenth Amendment should incorporate any substantive rights, with opinions from Supreme Court justices ranging from complete to no incorporation.

The Supreme Court supported selectively incorporating rights that it deemed essential to due process, rather than incorporating all of the rights outlined in the Bill of Rights. Under selective incorporation, the Supreme Court incorporated certain parts of certain amendments, rather than incorporating entire amendments at once. The Modern Supreme Court doctrine embraces the doctrine of selective incorporation of the Bill of Rights against the states, meaning that the Court has held on a case-by-case basis that many of the provisions of the Bill of Rights limit state government action.

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 was ratified in 1868, and since then, the Supreme Court has interpreted the Due Process Clause to impose on the states many of the Bill of Rights' limitations. This interpretation is sometimes called "incorporation against the states through the Due Process Clause".

The Due Process Clause guarantees "due process of law" before the government may deprive someone of "life, liberty, or property". The Supreme Court has held that most provisions of the Bill of Rights apply to the states through the Due Process Clause. This process of selective incorporation means that the Court has held on a case-by-case basis that many of the provisions of the Bill of Rights limit state government action.

The Due Process Clause has been the subject of much debate, with some arguing that it has resulted in an expansion of individual liberties, while others argue that it has led to an expansion of the federal government. One of the most controversial aspects of the Due Process Clause is substantive due process, which has little support in the text and history of the Constitution and has long been a source of political debate.

In deciding whether the Fourteenth Amendment incorporates 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'. For example, the Court has held that the Due Process Clause of the Fourteenth Amendment includes applying parts of the First Amendment to the states, such as freedom of speech and freedom of the press.

The process of incorporation has played out over many years and through many cases. Some landmark cases that have dealt with the Due Process Clause and its incorporation of the Bill of Rights against the states include Gitlow v. New York (1925), Powell v. Alabama (1932), Palko v. Connecticut (1937), and Griswold v. Connecticut (1965).

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Supreme Court decisions

The doctrine of incorporation 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 Supreme Court has played a significant role in interpreting and applying this doctrine through its decisions.

Initially, the Supreme Court held that the Bill of Rights restricted only the federal government and not the states. This interpretation changed after the ratification of the Fourteenth Amendment in 1868. The Court then began to interpret the Fourteenth Amendment's Due Process Clause as imposing on the states many of the limitations outlined in the Bill of Rights. This interpretation is known as "incorporation against the states" or simply "incorporation."

Through a series of decisions in the 1940s and 1960s, the Supreme Court gradually incorporated several specific rights from the Bill of Rights, making them binding upon the states. For example, in Powell v. Alabama, 287 U.S. 45, 67–68 (1932), the Court held that certain rights applied against the states because they were fundamental, regardless of whether they were named in the Bill of Rights.

The Supreme Court has embraced the doctrine of selective incorporation, which means that it decides on a case-by-case basis which provisions of the Bill of Rights limit state government action. In Mapp v. Ohio, 367 U.S. 643 (1961), Klopfer v. North Carolina, 386 U.S. 213 (1967), Duncan v. Louisiana, 391 U.S. 145 (1968), and several other cases, the Court applied specific provisions of the Bill of Rights to the states through the Fourteenth Amendment's Due Process Clause.

However, the Court has not incorporated all rights from the Bill of Rights. The Ninth and Tenth Amendments, for instance, have not been incorporated and are unlikely to be. Additionally, in Teague v. Lane, 489 U.S. 288 (1989), the Court declined to apply new procedural constitutional rights retroactively against the states in criminal cases.

In summary, the Supreme Court's decisions on the doctrine of incorporation have shaped the application of the Bill of Rights to the states, ensuring that certain fundamental rights are protected at both the federal and state levels while also acknowledging the unique concerns of each state.

Selective incorporation

The doctrine of incorporation is a constitutional doctrine that applies parts of the Bill of Rights (the first ten amendments to the US Constitution) to individual US states through the Fourteenth Amendment's Due Process Clause. The Bill of Rights, when ratified, only applied to the federal government. The Fourteenth Amendment, passed in 1868, changed this by prohibiting states from depriving their citizens of rights and protections contained in the Bill of Rights.

The Supreme Court has interpreted the Fourteenth Amendment's Due Process Clause to impose on the states many of the Bill of Rights' limitations. This is known as the doctrine of selective incorporation. The Supreme Court has held that most provisions of the Bill of Rights apply to the states, but not all. The Ninth and Tenth Amendments, for example, have not been incorporated and are unlikely to ever be.

The Supreme Court has taken a case-by-case approach to selective incorporation, incorporating certain parts of certain amendments, rather than incorporating an entire amendment at once. When deciding whether the Fourteenth Amendment incorporates 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'.

In some cases, the Court has held that certain rights apply against the states because the rights at issue were fundamental, not merely because they were named in the Bill of Rights and incorporated by the Fourteenth Amendment. For example, in Powell v. Alabama, the Court held that the right to counsel applied against the states because it was fundamental, not because it was incorporated by the Fourteenth Amendment.

A dissenting school of thought, championed by Justices Hugo Black and William O. Douglas, supports the incorporation of specific rights but urges the incorporation of all specific rights instead of just some of them. Black felt that the Fourteenth Amendment required states to respect all of the rights set forth in the first eight amendments.

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