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Incorporation Doctrine – Explanation & Cases

Cite this article as: Jason Mance Gordon, "Incorporation Doctrine – Explanation & Cases," in The Business Professor, updated January 2, 2015, last accessed April 8, 2020, https://thebusinessprofessor.com/knowledge-base/incorporation-doctrine/.
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14th Amendment - Incorporation Doctrine
What is the Incorporation Doctrine? The 14th Amendment incorporates the Bill of Rights into State Law.

Next Article: 14th Amendment – Equal Protection Clause


Due Process Clause – Incorporation Doctrine

The 14th Amendment’s Due Process clause is an incorporation doctrine. That is, in addition to requiring that states observe principles of due process in the execution of laws, it makes many of the provisions of the Bill of Rights applicable to state governments. That is, state governments cannot act to infringe upon the constitutionally protected rights of its citizens.

Section 1 of the 14th Amendment reads:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

How The 14th Amendment Began Limiting State Action

The question of whether the protections of citizens under the US Constitution apply to limit the ability of states to infringe upon those rights first arose in1833 in Barron v. Mayor & City of Baltimore.

The Slaughter-House cases in 1873 further held that Federal protections of citizens were not meant to prohibit state action – particularly the prohibition from violating the equal protection rights of individuals. In United States v. Cruikshank (1876) the Supreme Court held that the 1st and 2nd Amendments to the US Constitution do not apply to the states.

In 1908, in Twining v. New Jerseythe Supreme Court first recognized that the Due Process Clause could incorporate provisions of the Bill of Rights into state law – though it held that there is no intent for incorporation under the Privileges or Immunities Clause.

In 1925, in the landmark case, Gitlow v. New York, the Supreme Court held that protections under the 1st Amendment applied to states.

The Gitlow case began the incorporation of various provisions of the Bill of Rights into state law. It did not, however, lay down blanket incorporation. In Palko v. Connecticut (1937), Justice Benjamin Cardozo, writing for the majority, wrote only “fundamental rights” need be “incorporated” into the 14th Amendment, as they are “of the very essence of a scheme of ordered liberty” and “rooted in the tradition and conscience of our people.” This decision resulted in the concept of “partial incorporation”.

Provisions of the Bill of Rights Incorporated into State Law

Since the Gitlow decision, many of the protections of the Bill of Rights have been incorporated into state law. Important incorporation decisions include:

  • In Powell v. Alabama (1932), the US Supreme Court held that the Sixth Amendment affords the right to have an attorney in capital cases. Justice George Sutherland, writing for the majority, identified this guarantee in the Sixth Amendment.
  • In Hamilton v. Regents of U.C. (1934) – the Supreme Court recognized that the First Amendment ensures the right to exercise any religion. Though, the court did reaffirm that the privileges and immunities ensured by the US Constitution do not necessarily apply to state governments.
  • In DeJonge v. Oregon (1937), the US Supreme Court held that the First Amendment protections of assembly & petition are embodied in the 14th Amendment.
  • In Everson v. Board of Ed. (1947), the US Supreme Court held that a New Jersey statute assisting parochial schools did not violate the First Amendment. The court reasoned, however, that the First Amendment does prohibit states from the Establishment of a Religion.
  • In In re Oliver (1948), the Supreme Court held that, under the Sixth Amendment, the defendant is entitled to a public trial, at least to the extent of having his friends, relatives and counsel present — no matter with what offense he may be charged.
  • In Mapp v. Ohio (1961), the Supreme Court held that the Fourth Amendment protects a defendant in state court from unreasonable search and seizure.
  • In Robinson v. California (1962), the Supreme Court held that the Eighth Amendment protects against cruel and unusual punishment by a state. In this case, convicting someone for being inflicted with an illness (narcotic addition) violates the Eighth and Fourteenth Amendments.
  • In Gideon v. Wainwright (1963), the Supreme Court held that the Sixth Amendment’s guarantee of a right to assistance of counsel applies to criminal defendants in state court by way of the Fourteenth Amendment.
  • In Malloy v. Hogan (1964), the Supreme Court held that the Fifth Amendment’s exception from compulsory self-incrimination is protected by the Fourteenth Amendment against abridgment by a state.
  • In Pointer v. Texas (1965), the Supreme Court held that the Sixth Amendment’s right of confrontation required the state to allow the defendant an opportunity to confront a witness against him through counsel.
  • In Parker v. Gladden (1966), the Supreme Court held that the Sixth Amendment ensures the right to have an impartial jury trial.
  • In Klopfer v. North Carolina (1967), the Supreme Court held that the Sixth Amendment the right to jury trial in criminal cases.
  • In Washington v. Texas (1967), the Supreme Court held that the Sixth Amendment ensures the right to compel witnesses to testify.
  • In Duncan vs Louisiana (1968) the US Supreme Court held that certain provisions of the Bill of Rights are “fundamental to the American scheme of justice”. In this case, the Supreme Court recognized the right to trial by jury under the Sixth Amendment. Notably, there is no right to trial by jury in civil cases amounting to $20 or more at the state level.
  • In Benton v. Maryland, (1969), the Supreme Court held that the Double Jeopardy Clause of the Fifth Amendment as applied to the states is an element of liberty protected by Due Process of the Fourteenth Amendment.
  • In Argersinger v. Hamilin (1972), the Supreme Court held that the Sixth Amendment’s right to an attorney in a criminal case that could subject the defendant to imprisonment.
  • In McDonald v. Chicago (2010), the Supreme Court reversed the Seventh Circuit, holding that the Fourteenth Amendment makes the Second Amendment right to keep and bear arms for the purpose of self-defense applicable to the states.
  • In Timbs v. Indiana (2019), the Due Process Clause of the Fourteenth Amendment incorporated the Eighth Amendment’s prohibition against excessive fines to the states.

Provisions of the Bill of Rights are Not Incorporated into State Law

The Supreme Court has not incorporated or not addressed the issue of whether certain Amendments are incorporated into state law. These provisions include:

The Ninth and Tenth amendments do not create or identify individual rights and thus are not incorporated.

  • Example: If a state arrests an individual, it must follow procedures that protect her constitutionally-granted rights. This may include providing the individual with an attorney, notification of the charges against her, a speedy trial (if requested), a jury trial, etc. Further, if an individual is subject to administrative action by the government, the administrative process must not infringe upon her constitutionally-granted rights. This may include a notice of administrative action, the opportunity to be heard, and the ability to seek review of an agency’s decision in a court of law.

Discussion: What would be the effect if the Bill of Rights did not apply to state governments?

Discussion Input

  • Many would argue that state courts would, through their common-law decisions reduce the protection of individual rights below the minimum requirements established by the US Constitution. There is a particular concern for this in cases of discrimination against individuals based on race, religion, gender, and sexual orientation. Furthermore, there is concern over government overreach and negative effects on education and healthcare. Think about issues of same-sex marriage, common core school standards, and individual healthcare.

Practice Question: State A passes a law that states that all forms of public speech involving political matters is prohibited. If the Constitutionality of the law is challenged, what Constitutional provisions are implicated?

Proposed Answer

  • According to the 1st Amendment, this law affects the individual’s freedom of speech and right to press, since it prohibits public speech involving political matters. The 1st amendment proscribes government restrictions on the content of speech, protects the right to receive information, prohibits discrimination against speakers and prohibits the government from requiring individuals to speak or finance certain types of speech which they don’t agree. The provisions of the 1st Amendment are incorporated into state law pursuant to the 14th Amendment. Furthermore, due process rights assure fundamental fairness in any governmental acts that may affect life, liberty, property, and other constitutional rights. A state law seeking to prohibit speech without meeting the legal standards of Strict Scrutiny would likely be held to be unconstitutional. Further, the manner in which any such law was exercised and enforced against individuals would be affected by the fundamental fairness and decency provisions (procedural due process rights) under the 14th Amendment.

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