Incorporation Doctrine

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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. Incorporation applies both substantively and procedurally. 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. 

Some argue that Privileges or Immunities Clause is a more appropriate textual basis than the due process clause for incorporation of the Bill of Rights but because Slaughter-House Cases dealing with this clause are surrounded by controversy this theory is not supported by the majority of the court.

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

Reverse Incorporation

Reverse incorporation under Bolling v. Sharpe, refers to the Supreme Court using state law to fill in the gaps when deciding issues which Supreme Court itself has not considered before. 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.

Amended by Krystyna Blokhina Gilkis 3.30.20