Incorporation Doctrine

Overview

The incorporation doctrine is a constitutional doctrine through which 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. Prior to the doctrine's (and the Fourteenth Amendment's) existence, the Bill of Rights applied only to the Federal Government and to federal court cases. States and state courts could choose to adopt similar laws, but were under no obligation to do so. 

After the passage of the Fourteenth Amendment, the Supreme Court favored a process called “selective incorporation.” Under selective incorporation, the Supreme Court would incorporate certain parts of certain amendments, rather than incorporating an entire amendment at once. 

As a note, the Ninth Amendment and the Tenth Amendment have not been incorporated, and it is unlikely that they ever will be. The text of the Tenth Amendment directly interacts with state law, and the Supreme Court rarely relies upon the Ninth Amendment when deciding cases. 

Incorporated Amendments

Full Incorporation

Partial Incorporation

No Incorporation

First Amendment

Fifth Amendment (The right to indictment by a grand jury has not been incorporated)

Third Amendment

Second Amendment

Sixth Amendment (The right to a jury selected from residents of crime location has not been incorporated)

Seventh Amendment 

 

Fourth Amendment

Eighth Amendment (Prohibition against excessive fines has not been incorporated)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Reverse Incorporation 

Reverse incorporation refers to the Supreme Court taking a state law and making it into federal law. This doctrine has not been used very often by the Supreme Court. For more on reverse incorporation, see this Southern California Law Review article and this University of Michigan Law Review article.

Further Reading

For more on the Incorporation Doctrine, see this ABA article on the Seventh Amendment, this Valparaiso Law Review article on the Third Amendment, and this ABA article