What is Incorporation Doctrine?

Legal Definition
The incorporation doctrine is a constitutional doctrine through which selected provisions of the Bill of Rights are made applicable to the states through the Due Process clause of the Fourteenth Amendment. This means that state governments are held to the same standards as the Federal Government regarding certain constitutional rights. The Supreme Court could have used the Privileges and Immunities Clause of the Fourteenth Amendment to apply the Bill of Rights to the states. However, in the Slaughter-House Cases 83 US 36, the Supreme Court held that the Privileges and Immunities clause of the Fourteenth Amendment placed no restriction on the police powers of the state and it was intended to apply only to privileges and immunities of citizens of the United States and not the privileges and immunities of citizens of the individual states. This decision effectively put state laws beyond the review of the Supreme Court. To circumvent this, the Supreme Court began a process called “selective incorporation” by gradually applying selected provisions of the Bill of Rights to the states through the Fourteenth Amendment Due Process clause.

Full Incorporation

Partial Incorporation

No Incorporation

1st Amendment

5th Amendment (The right to indictment by a grand jury has not been incorporated)

3rd Amendment

2nd Amendment

6th Amendment (The right to a jury selected from residents of crime location has not been incorporated)

4th Amendment

7th Amendment (The right to a jury trial in civil cases has not been incorporated)

8th Amendment (Prohibition against excessive fines has not been incorporated)

First Amendment — Guarantee against the establishment of religion: Everson v Board of Education, 330 U.S. 1 (1947); Free Exercise of Religion: Hamilton v Regents of the University of California, 293 U.S. 245 (1934), Cantwell v Connecticut, 310 U.S. 296 (1940); Freedom of Speech: Gitlow v New York 368 US 652 (1925); Freedom of the Press: Near v Minnesota 283 U.S. 697 (1931); Right of Assembly and Petition: DeJonge v Oregon 299 U.S. 353 (1937); Right to petition for redress of grievances: Edwards v South Carolina 372 U.S. 229 (1963).

Second AmendmentRight to keep and bear arms: McDonald v Chicago 130 S. Ct. 3020 (2010).

Third Amendment — Freedom from having soldiers quartered in any house: Engblom v Carey 677 F.2d 957 (1982) (only incorporated against states within the jurisdiction of the US Court of Appeals for the 2nd circuit which includes Connecticut, New York and Vermont).

Fourth Amendment — Freedom from unreasonable search and seizure: Mapp v Ohio 367 U.S. 643 (1961); Requirements in a warrant: Aguilar v Texas 378 US 108 (1964)

Fifth Amendment — Right to indictment by a grand jury (not incorporated): Hurtado v California 110 US 516 (1884); Double Jeopardy: Benton v Maryland 395 US 784 (1969); Right against Self-Incrimination: Malloy v Hogan 378 US 1 (1964); Protection against taking property without due compensation: Chicago, Burlington & Quincy Railroad Co. v City of Chicago 166 US 226 (1897).

Sixth Amendment — Right to a Speedy Trial: Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967); Right to a Public Trial: In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948); Right to an Impartial Jury: Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966); Right to notice of accusations: In re Oliver 333 US 257 (1948); Right to Confront Hostile Witnesses: Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Right to compulsory process to obtain witness testimony: Washington v Texas, 388 US 400 (1965); Right to Confront Favorable Witnesses: Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); Right to Counsel: Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Right to jury selected from residents of the state and district where the crime occurred (not incorporated) (Caudill v Scott) 857 F.2d 344.

Seventh Amendment — The guarantee of a right to jury trial in civil cases (not incorporated): Minneapolis & St. Louis R. Co. v Bombolis 241 US 211 (1916). The right to have no fact already tried by a jury re-examined in any Court other than according to the rules of the common law has been incorporated: Justices v Murray 76 US 9 Wall. 274 (1869).

Eight Amendment — Protection against excessive bail: Schilb v Kuebel 404 US 357 (1971); Protection against excessive fines: (not incorporated) (McDonald v City of Chicago 130 S. Ct. 3020 n.13 (2010); Protection against cruel and unusual punishments: Robinson v California, 370 US 660 (1962).