Incorporation Doctrine

Introduction

The incorporation doctrine is the constitutional doctrine through which most provisions of the Bill of Rights have been made applicable to state and local governments. The Bill of Rights originally applied only to the federal government, as the Supreme Court held in Barron v. Baltimore (1833). The incorporation doctrine uses the Fourteenth Amendment’s Due Process Clause to apply selected Bill of Rights protections against the states, fundamentally expanding the scope of constitutional protections for individual liberty.

The incorporation doctrine has been one of the most significant developments in American constitutional law. Without incorporation, states would be free to establish religion, suppress speech, conduct unreasonable searches, and deny criminal defendants fundamental procedural protections. The doctrine has nationalized the Bill of Rights, ensuring that fundamental liberties are protected uniformly throughout the United States.

The Original Understanding

The Bill of Rights was adopted in 1791 as a limitation on the new federal government. The First Amendment begins “Congress shall make no law,” and the other amendments similarly restrict federal power. In Barron v. Baltimore (1833), Chief Justice Marshall confirmed this understanding, holding that the Bill of Rights applies only to the federal government, not to the states.

The adoption of the Fourteenth Amendment in 1868 raised the question whether the amendment’s Privileges or Immunities Clause, Due Process Clause, or Equal Protection Clause made the Bill of Rights applicable to the states. In the Slaughter-House Cases (1873), the Supreme Court narrowly interpreted the Privileges or Immunities Clause, effectively foreclosing that avenue for incorporation.

Total Incorporation vs. Selective Incorporation

Justice Hugo Black argued for total incorporation — the view that the Fourteenth Amendment makes the entire Bill of Rights applicable to the states. In his dissent in Adamson v. California (1947), Black contended that the framers of the Fourteenth Amendment intended to apply the Bill of Rights in its entirety to the states. Black’s position was never adopted by a majority of the Court.

The Court instead adopted selective incorporation — the case-by-case determination of whether each Bill of Rights protection is fundamental to the American scheme of ordered liberty and therefore applicable to the states. Justice Cardozo articulated this approach in Palko v. Connecticut (1937), holding that only rights “implicit in the concept of ordered liberty” are incorporated. Under selective incorporation, the Court examines whether a particular right is deeply rooted in American history and tradition and essential to fundamental fairness.

The Process of Incorporation

The Supreme Court began incorporating Bill of Rights protections against the states in the early twentieth century. The process accelerated during the Warren Court era (1953-1969) and continued through subsequent decades. The Court has incorporated most, but not all, provisions of the Bill of Rights.

First Amendment freedoms were the first to be incorporated: free speech in Gitlow v. New York (1925), free press in Near v. Minnesota (1931), free exercise in Cantwell v. Connecticut (1940), and establishment in Everson v. Board of Education (1947). The Second Amendment was incorporated in McDonald v. City of Chicago (2010). The Fourth Amendment protections against unreasonable searches and seizures and the exclusionary rule were incorporated in Mapp v. Ohio (1961).

Fifth Amendment protections have been incorporated: self-incrimination in Malloy v. Hogan (1964), double jeopardy in Benton v. Maryland (1969), and just compensation in Chicago, Burlington & Quincy Railroad Co. v. Chicago (1897). The grand jury requirement has not been incorporated.

Sixth Amendment protections incorporated include the right to counsel in Gideon v. Wainwright (1963), public trial in In re Oliver (1948), jury trial in Duncan v. Louisiana (1968), confrontation in Pointer v. Texas (1965), compulsory process in Washington v. Texas (1967), and speedy trial in Klopfer v. North Carolina (1967).

Eighth Amendment protections: cruel and unusual punishment in Robinson v. California (1962) and excessive fines in Timbs v. Indiana (2019).

Duncan v. Louisiana (1968)

Duncan v. Louisiana (1968) is a landmark incorporation case. The Court held that the Sixth Amendment right to jury trial in serious criminal cases is applicable to the states through the Fourteenth Amendment. Justice White’s opinion articulated the standard for selective incorporation: whether a right is “fundamental to the American scheme of justice” and necessary for a fair trial.

The Duncan Court emphasized that the right to jury trial is deeply rooted in American history and tradition and serves essential functions in protecting against government oppression. The decision confirmed that the selective incorporation standard focuses on whether a right is essential to fundamental fairness, not whether it is identical in all respects to the federal right. States may implement incorporated rights differently as long as they satisfy the fundamental fairness threshold.

Provisions Not Incorporated

Several Bill of Rights provisions have not been incorporated. The Third Amendment prohibition on quartering soldiers has not been incorporated, though there is no dispute that it would be if the question arose. The Fifth Amendment grand jury requirement has been expressly held not applicable to the states, as the Court held in Hurtado v. California (1884).

The Seventh Amendment right to civil jury trial has not been incorporated. The Court held in Minneapolis & St. Louis Railroad Co. v. Bombolis (1916) that the Seventh Amendment applies only to federal courts, and this holding has never been overruled. The Eighth Amendment prohibition on excessive bail has not been formally incorporated, though states generally provide bail protections under their own constitutions.

The Incorporation Debate

The incorporation doctrine has generated persistent scholarly debate. Critics argue that incorporation was a judicial power grab that distorted the original meaning of the Fourteenth Amendment and undermined state autonomy. Some originalist scholars contend that the Privileges or Immunities Clause was intended to protect fundamental rights but was wrongly limited in the Slaughter-House Cases, and they advocate for reviving that clause as the vehicle for incorporation.

Justice Thomas has argued that the Privileges or Immunities Clause, rather than the Due Process Clause, should be the source of incorporated rights. In McDonald v. City of Chicago (2010), Thomas concurred, arguing that the Second Amendment applies to the states through the Privileges or Immunities Clause. However, a majority of the Court has continued to use the Due Process Clause as the vehicle for incorporation.

The Effects of Incorporation

Incorporation has fundamentally transformed American constitutional law. Before incorporation, states could deny criminal defendants the right to counsel, conduct unreasonable searches, compel self-incrimination, and impose cruel punishments. After incorporation, state criminal procedure is subject to the same basic constitutional protections as federal procedure.

Incorporation has also nationalized rights of speech, press, religion, assembly, and petition, ensuring that these fundamental liberties are protected against infringement by state and local governments. The doctrine has created a national floor of constitutional protections, with states free to provide greater protections under their own constitutions.

Conclusion

The incorporation doctrine has applied most provisions of the Bill of Rights to the states through the Fourteenth Amendment’s Due Process Clause, transforming the Bill of Rights from a restriction on federal power alone to a comprehensive charter of liberty protecting all Americans against government overreach at every level. Through selective incorporation, the Supreme Court has determined on a case-by-case basis which rights are fundamental to the American scheme of ordered liberty, gradually extending constitutional protections to state criminal procedure, free expression, religious liberty, and other fundamental rights. Incorporation remains one of the most significant developments in American constitutional history, ensuring that the fundamental liberties protected by the Bill of Rights are available to every American, regardless of which state they call home.