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Incorporation Doctrine

Due Process Clause – Incorporation Doctrine

The 14th Amendment’s Due Process clause is an incorporation doctrine. In addition to requiring that states observe principles of due process in the execution of laws, it makes all 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. As previously stated, the 5th Amendment’s Due Process Clause applies strictly to the Federal Government.

⁃    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 government?

⁃    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?

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