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

• First Amendment
  • Guarantee against the establishment of religion: Everson v Board of Education, 330 U.S. 1 (1947)
  • Free Exercise of Religion: Hamilton v. Regents of the University of California, 293 U.S. 245 (1934), Cantwell v. Connecticut, 310 U.S. 296 (1940)
  • Freedom of Speech: Gitlow v. New York 268 U.S. 652 (1925)
  • Freedom of the Press: Near v. Minnesota 283 U.S. 697 (1931)
  • Right of Assembly and Petition: DeJonge v. Oregon 299 U.S. 353 (1937)
• Second Amendment
  • ​Right to keep and bear arms: McDonald v. Chicago, 561 U.S. 742 (2010).​
• Third Amendment
  • not incorporated
• Fourth Amendment
  • Freedom from unreasonable search and seizure: Mapp v. Ohio, 367 U.S. 643 (1961)
  • Requirements in a warrant: Aguilar v. Texas, 378 U.S. 108 (1964)
• Fifth Amendment Right to indictment by a grand jury (not incorporated): Hurtado v. California, 110 US 516 (1884);
  • Double Jeopardy: Benton v. Maryland, 395 US 784 (1969)
  • Right against Self-Incrimination: Malloy v. Hogan, 378 US 1 (1964)
  • Protection against taking property without due compensation: Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897).
• Sixth Amendment
  • Right to a Speedy Trial: Klopfer v. North Carolina, 386 U.S. 213 (1967)
  • Right to a Public Trial: In re Oliver, 333 U.S. 257 (1948)
  • Right to an Impartial Jury: Parker v. Gladden, 385 U.S. 363 (1966)
  • Right to notice of accusations: In re Oliver 333, U.S. 257 (1948)
  • Right to Confront Hostile Witnesses: Pointer v. Texas, 380 U.S. 400 (1965)
  • Right to compulsory process to obtain witness testimony: Washington v. Texas, 388 U.S. 400 (1965)
  • Right to Confront Favorable Witnesses: Washington v. Texas, 388 U.S. 14 (1967)
  • Right to Counsel: Gideon v. Wainwright, 372 U.S. 335 (1963)
  • Right to jury selected from residents of the state and district where the crime occurred (not incorporated)
• Seventh Amendment
  • ​ not incorporated
• Eight Amendment
  • Protection against excessive bail: Schilb v Kuebel, 404 U.S. 357 (1971)
  • Protection against excessive fine (not incorporated) McDonald v City of Chicago, 561 U.S. 742 (2010)
  • Protection against cruel and unusual punishments: Robinson v California, 370 U.S. 660 (1962).

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.