Eleanor Finch
The incorporation doctrine is a constitutional doctrine that applies parts of the first ten amendments of the United States Constitution (the Bill of Rights) to the states through the Due Process Clause of the Fourteenth Amendment. This process, also known as selective incorporation, began in the 1920s with a series of Supreme Court decisions that interpreted the Fourteenth Amendment to incorporate most portions of the Bill of Rights, making them enforceable against state governments. The Fourteenth Amendment, ratified in 1868 after the Civil War, prohibits states from depriving their citizens of certain privileges and protections contained in the Bill of Rights. This marked a significant shift from the early understanding of the Bill of Rights, which was initially believed to restrict only the federal government and not the states. The incorporation doctrine has been central to expanding the role of the Bill of Rights in protecting individuals from state abuses, ensuring that the rights and liberties enshrined in the Constitution apply at the national, state, and local levels.
| Characteristics | Values |
|---|---|
| What is the Incorporation Doctrine? | 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. |
| When did it become law? | In 1886, with the case of Presser v. Illinois, 116 U.S. 252. |
| What does it apply to? | The Due Process Clause of the Fourteenth Amendment, which prohibits states from depriving their citizens of certain privileges and protections contained in the Bill of Rights. |
| What is the alternative approach? | To base constitutional protection of a right or liberty directly on the Fourteenth Amendment's prohibition on states depriving any person of "life, liberty, or property, without due process of law." |
| What is the process of incorporation? | A case-by-case process of applying key Bill of Rights protections against state abuses. |
| What is selective incorporation? | The process by which the Supreme Court incorporates certain parts of certain amendments, rather than incorporating an entire amendment at once. |
| What is an example of selective incorporation? | The incorporation of the First Amendment, which began with Gitlow v. New York in 1925 and culminated in the 1940s. |
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What You'll Learn
The Fourteenth Amendment
Additionally, the amendment includes provisions for apportioning representatives among the states according to their respective numbers, excluding untaxed Indigenous people from the count.
One of the most significant aspects of the Fourteenth Amendment is its interpretation by the Supreme Court through the incorporation doctrine. The Court interpreted the Due Process Clause to impose on the states many of the limitations outlined in the Bill of Rights, effectively extending these rights to the states and their citizens. This interpretation has been a subject of contention, with varying opinions among Supreme Court justices on the extent and nature of incorporation.
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The Bill of Rights
In 1833, the Supreme Court held in Barron v Baltimore that the Bill of Rights was clearly intended to limit only the federal government. In the early years of the Republic, both Congress and the Supreme Court appear to have believed that the Bill of Rights restricted only the federal government, not the states. 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.
However, in the post-Civil War era, beginning in 1865 with the Thirteenth Amendment, which declared the abolition of slavery, the incorporation of other amendments applied more rights to the states and people over time. After the passage of the Fourteenth Amendment in 1868, the Supreme Court, through a string of cases, found that the Due Process Clause of the Fourteenth Amendment included applying parts of the Bill of Rights to States (referred to as incorporation). The Due Process Clause of the Fourteenth Amendment prohibits the states from depriving their citizens of certain privileges and protections contained in the Bill of Rights.
Gradually, various portions of the Bill of Rights have been held to be applicable to state and local governments by incorporation via the Due Process Clause of the Fourteenth Amendment. 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 is known as the incorporation doctrine, through which parts of the first ten amendments of the US Constitution (known as the Bill of Rights) are made applicable to the states through the Due Process Clause of the Fourteenth Amendment.
In the 1900s, the Supreme Court began to apply key Bill of Rights protections to the states on a case-by-case basis—one constitutional right at a time. This process is known as selective incorporation. The Court has steadily incorporated most of the significant provisions of the Bill of Rights, although some provisions have not been incorporated, such as the Fifth Amendment right to indictment by a grand jury and the Seventh Amendment right to a jury trial in civil lawsuits.
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The Due Process Clause
The Fifth Amendment's Due Process Clause was first recognised as a restraint upon the federal government, requiring procedural "due process" for the enforcement of law. The Supreme Court has applied the Due Process Clause to corporations and non-citizens within the United States, although non-citizens can be stopped, detained, and denied at points of entry without its protection. The Due Process Clause has also been interpreted to expressly allow the death penalty in the United States, as long as proper procedures are followed.
The Fourteenth Amendment's Due Process Clause has been interpreted to impose on the states many of the Bill of Rights' limitations, a doctrine sometimes called incorporation against the states. The Supreme Court has supported selectively incorporating rights deemed essential to due process, rather than incorporating the entire Bill of Rights. This process, known as selective incorporation, has applied most of the provisions of the first eight Amendments, such as free speech, freedom of religion, and protection against unreasonable searches and seizures, to the states.
The Fourteenth Amendment also promises that all persons in the United States shall enjoy the "equal protection of the laws", which means that they cannot be discriminated against without a good reason or "rational basis".
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The Supreme Court
Historically, the Bill of Rights only constrained the federal government, and state governments were not bound by its protections. This understanding was affirmed by the Supreme Court in Barron v. Baltimore in 1833, which held that the Bill of Rights did not place limitations on state governments. However, following the ratification of the Fourteenth Amendment in 1868, the Supreme Court began to reinterpret the scope of the Bill of Rights.
In a series of cases starting in the 1920s, the Supreme Court used the Fourteenth Amendment's Due Process Clause to "'incorporate'" the Bill of Rights, making its protections enforceable against state governments. This process, known as selective incorporation, allowed the Supreme Court to apply specific rights from the Bill of Rights to the states on a case-by-case basis. For example, in Gitlow v. New York (1925), the Court applied First Amendment freedoms to the states, ensuring protections for free speech and freedom of the press. Similarly, in Everson v. Board of Education (1947), the Court incorporated the First Amendment's freedom from the establishment of religion.
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Selective incorporation
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 through the Due Process Clause of the Fourteenth Amendment. 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.
Prior to the Fourteenth Amendment, the Supreme Court found the Bill of Rights to only apply 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 powerful federal 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 in 1868, the Supreme Court, through a string of cases, found that the Due Process Clause of the Fourteenth Amendment included applying parts of the Bill of Rights to States, referred to as incorporation. The Fourteenth Amendment guarantees that equal protection and due process of law extend to all persons, meaning state laws may not infringe upon those rights.
Throughout the 1960s, the Court used selective incorporation to apply certain protections in the Bill of Rights to state criminal procedures. For example, Miranda v. Arizona (1966) held that law enforcement must advise persons in custody of their right to remain silent. Chief Justice Warren wrote for the Court that protection from self-incrimination is “essential” to the criminal justice system as it is one of the provisions of the Fifth Amendment. The Warren Court also incorporated the Fourth and Sixth Amendments, which also address the rights of the accused in criminal cases.
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Frequently asked questions
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 through the Due Process Clause of the Fourteenth Amendment.
The incorporation doctrine has been law since Presser v. Illinois in 1886.
The Fourteenth Amendment, ratified in 1868 after the Civil War, prohibited states from depriving their citizens of certain privileges and protections contained in the Bill of Rights. This marked a shift from the pre-Civil War era, where the Bill of Rights only protected citizens from abuses by the national government and not state governments.
Selective incorporation refers to the process of applying key Bill of Rights protections against state abuses on a case-by-case basis, rather than incorporating an entire amendment at once.
