The doctrine of incorporation, also known as the doctrine of selective incorporation, is a legal principle in United States constitutional law that determines how and to what extent the protections and provisions of the Bill of Rights apply to state and local governments through the Fourteenth Amendment. The doctrine revolves around the question of whether the Bill of Rights, which initially limited only the federal government, also restricts the actions of state and local governments.
Bill of Rights: The Bill of Rights consists of the first ten amendments to the US Constitution, which enumerate various fundamental rights and protections, such as freedom of speech, religion, and the right to bear arms.
Fourteenth Amendment: The Fourteenth Amendment to the US Constitution, ratified in 1868, contains important provisions, including the Equal Protection Clause and the Due Process Clause. It was primarily enacted to protect the rights of newly freed slaves following the Civil War and ensure equal treatment under the law.
Due Process Clause: The Due Process Clause of the Fourteenth Amendment states, "No state shall...deprive any person of life, liberty, or property, without due process of law." This clause forms the basis of the Incorporation Doctrine.
Selective incorporation: The incorporation doctrine involves selectively incorporating specific provisions of the Bill of Rights into the Due Process Clause of the Fourteenth Amendment. This means that the Supreme Court has examined individual amendments within the Bill of Rights and decided whether they should be applied to state and local governments.
Supreme Court decisions: Over the years, the Supreme Court has issued a series of decisions that selectively incorporated various provisions of the Bill of Rights. Some rights, such as freedom of speech and the right to counsel in criminal cases, have been fully incorporated and are applied to state and local governments. Others, like the right to bear arms as in District of Columbia v Heller (2008) were not fully incorporated and remained applicable in Washington D.C., which is a federal enclave within federal jurisdiction, until McDonald v City of Chicago (2010), where the Supreme Court held that the right to keep and bear arms applies to state and local governments through incorporation.
Applicability: The level of incorporation can vary from one provision to another, depending on the Supreme Court's interpretation. In general, fundamental rights that are considered essential to the concept of ordered liberty or deeply rooted in American history and tradition are more likely to be incorporated.
The Incorporation Doctrine has played a critical role in expanding the protections of the Bill of Rights to apply to state and local governments, ensuring that individuals' fundamental rights are safeguarded throughout the United States. It has been a dynamic and evolving aspect of constitutional law, with the Supreme Court continuing to revisit and clarify the extent of incorporation in various cases.
