Incorporation Doctrine

• Author: Jeffrey Lehman, Shirelle Phelps

Page 371

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 SL...