Incorporation Doctrine


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Incorporation Doctrine

A constitutional doctrine whereby selected provisions of the Bill of Rights are made applicable to the states through the due process clause of the Fourteenth Amendment.

The doctrine of selective incorporation, or simply the incorporation doctrine, makes the first ten amendments to the Constitution—known as the Bill of Rights—binding on the states. Through incorporation, state governments largely are held to the same standards as the federal government with regard to many constitutional rights, including the First Amendment freedoms of speech, religion, and assembly, and the separation of church and state; the Fourth Amendment freedoms from unwarranted arrest and unreasonable searches and seizures; the fifth amendment privilege against self-incrimination; and the Sixth Amendment right to a speedy, fair, and public trial. Some provisions of the Bill of Rights—including the requirement of indictment by a Grand Jury (Sixth Amendment) and the right to a jury trial in civil cases (Seventh Amendment)—have not been applied to the states through the incorporation doctrine.

Until the early twentieth century, the Bill of Rights was interpreted as applying only to the federal government. In the 1833 case Barron ex rel. Tiernon v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243, 8 L. Ed. 672, the Supreme Court expressly limited application of the Bill of Rights to the federal government. By the mid-nineteenth century, this view was being challenged. For example, Republicans who were opposed to southern state laws that made it a crime to speak and publish against Slavery alleged that such laws violated First Amendment rights regarding Freedom of Speech and Freedom of the Press.

For a brief time following the ratification of the Fourteenth Amendment in 1868, it appeared that the Supreme Court might use the privileges and immunities clause of the Fourteenth Amendment to apply the Bill of Rights to the states. However, in the Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 21 L. Ed. 394 (1873), the first significant Supreme Court ruling on the Fourteenth Amendment, the Court handed down an extremely limiting interpretation of that clause. The Court held that the clause created a distinction between rights associated with state citizenship and rights associated with U.S., or federal, citizenship. It concluded that the Fourteenth Amendment prohibited states from passing laws abridging the rights of U.S. citizen-ship (which, it implied, were few in number) but had no authority over laws abridging the rights of state citizenship. The effect of this ruling was to put much state legislation beyond the review of the Supreme Court.

Instead of applying the Bill of Rights as a whole to the states, as it might have done through the Privileges and Immunities Clause, the Supreme Court has gradually applied selected elements of the first ten amendments to the states through the Due Process Clause of the Fourteenth Amendment. This process, known as selective incorporation, began in earnest in the 1920s. In Gitlow v. New York, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138 (1925), one of the earliest examples of the use of the incorporation doctrine, the Court held that the First Amendment protection of freedom of speech applied to the states through the Due Process Clause. By the late 1940s, many civil freedoms, including freedom of the press (Near v. Minnesota, 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 [1931]), had been incorporated into the Fourteenth Amendment, as had many of the rights that applied to defendants in criminal cases, including the right to representation by counsel in capital cases (Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 [1931]). In 1937, the Court decided that some of the privileges and immunities of the Bill of Rights were so fundamental that states were required to abide by them through the Due Process Clause (Palko v. Connecticut, 302 U.S. 319, 58 S. Ct. 149, 82 L. Ed. 288).

In 1947, the Court rejected an argument that the Fifth Amendment's right against Self-Incrimination applied to the states through the Fourteenth Amendment (Adamson v. People of the State of California, 332 U.S. 46, 67 S. Ct. 1672, 91 L. Ed. 2d 1903 [1947]). However, in one of the most famous dissents in history, Justice hugo l. black argued that the Fourteenth Amendment incorporated all aspects of the Bill of Rights and applied them to the states. Justice Felix Frankfurter, who wrote a concurrence in Adamson, disagreed forcefully with Black, arguing that some rights guaranteed by the Fourteenth Amendment may overlap with the guarantees of the Bill of Rights, but are not based directly upon such rights. The Court was hesitant to apply the incorporation doctrine until 1962, when Frankfurter retired from the Court. Following his retirement, most provisions of the Bill of Rights were eventually incorporated to apply to the states.

Further readings

Amar, Akhil Reed. 2002. "2000 Daniel J. Meador Lecture: Hugo Black and the Hall of Fame." Alabama Law Review 1221.

Cross-references

Due Process of Law.

References in periodicals archive ?
While the incorporation doctrine is rightly expressed as making application of the restrictions of the Bill of Rights upon the states, as well as the federal government, what is actually involved is the transfer of the right to interpret the Bill of Rights from state governments (including its legislative, judicial, and executive branches) to federal judges.
Indeed, the only portion of the above quoted excerpt from Chung which appears inconsistent with the incorporation doctrine, as it is understood today, is Lord Atkin's position that the reception of customary international law may be barred by existing conflicting common law.
Part II will include (a) a brief history of the incorporation doctrine in general and the incorporation of the Sixth Amendment in particular, and (b) an in-depth examination of the reasoning of the Apodaca holding.
Board of Education, the federal courts' ban on some laws discriminating between the sexes, the application of federal judges' favorite Bill of Rights ideas against the states through the so-called Incorporation Doctrine, the federal courts' decisions banning state legislatures from being apportioned as Congress is, and the creation of the gigantic bureaucratic state that came to be housed in Washington, D.
But if the court would identify an important individual right -- in this case, the right to bear arms -- and then deny that it applied to the states, those who never accepted the incorporation doctrine might try to ''de-incorporate'' other rights.
Under the Incorporation Doctrine, the plain language concerning "privileges and immunities" in the 14th Amendment is basically ignored while selected portions of the Bill of Rights are "incorporated" into the "Equal Protection" clause of that same amendment.
One could make legal arguments for this position by attacking the incorporation doctrine, (1) or, if one is taken with the current fad of referring to foreign law, (2) by expanding what European Union law calls the "margin of appreciation.
Against this background, an obvious question is whether the state of incorporation doctrine is really the most efficient way of granting corporations the right to choose.
That's the problem with the incorporation doctrine.
Meese would deny the Supreme Court a constitutional basis for prohibiting state and local officials from regulating the press, supporting a particular religion, coercing confessions, or suppressing books, all of which have been attempted by such officials and ruled unconstitutional under the incorporation doctrine.
The lawsuit will serve to establish the incorporation doctrine in the Ninth Circuit Court of Appeal, including California, and invalidate the existing ban on firearms in public housing in San Francisco in the process.
In effect, what the incorporation doctrine accomplishes is a massive transfer of power away from the states into the hands of the government in Washington, D.