incorporation doctrine

Overview

The incorporation doctrine is 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 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 Supreme Court found the Bill of Rights to only apply to the Federal government and to federal court cases. During the signing of the Constitution, every state in the negotiation had different levels of concerns with a too powerful Federal government, and the preamble to the Bill of Rights highlights the importance of the Bill of Rights in limiting overreach by the newly created government. The Supreme Court noted that the Bill of Rights was clearly intended to limit only the federal government (see Barron v City of Baltimore (1833)). 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, 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). A lot of contention surrounds whether the Fourteenth Amendment should incorporate any substantive rights, with opinions from Supreme Court justices ranging from complete to no incorporation (see substantive due process). Rather than find that the Due Process clause incorporates all of the Bill of Rights, the Supreme Court supported selectively incorporating rights that the Court finds as essential to due process. Under selective incorporation, the Supreme Court incorporated certain parts of certain amendments, rather than incorporating an entire amendment at once. 

Some argue that the 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

• First Amendment (fully incorporated)
  • 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)
  • Freedom of expressive association: Even though not directly mentioned in the Amendment, See Roberts v. United States Jaycees 468 U.S. 609 (1984) where the court states that “implicit in the right to engage in activities protected by the First Amendment is a corresponding right to associate with others in pursuit of wide variety of political, social, economic, educational, religious and cultural ends.”
• Second Amendment (fully incorporated)
  • ​Right to keep and bear arms: McDonald v. Chicago, 561 U.S. 742 (2010).​ 
• Third Amendment (not incorporated)
• Fourth Amendment (fully incorporated)
  • 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 (partially incorporated)
  • 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 (partially incorporated)
  • 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. 14 (1967)
  • 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: Timbs v. Indiana, 586 U.S. ___ (2019)
  • Protection against cruel and unusual punishments: Robinson v California, 370 U.S. 660 (1962).

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 the 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 Georgetown Law Article on Selective Incorporation.

[Last updated in October of 2022 by the Wex Definitions Team]