Main Content
Incorporation
Incorporation is the doctrine by which the Bill of Rights is made applicable or imposed on the states through the Due Process Clause of the Fourteenth Amendment. Prior to the Fourteenth Amendment, the Bill of Rights applied only to the National Government and was protected only by federal courts. States were under no obligation to recognize the provisions of the Bill of Rights found in the United States Constitution.
Not all protections found in the Bill of Rights are actually incorporated, which leads us to follow the path of selective incorporation. Selective incorporation simply means that the United States Supreme Court has either ignored or failed to incorporate some Bill of Rights protections. The general breakdown is as follows:
- Full Incorporation: 1st Amendment, 2nd Amendment, 4th Amendment, 8th Amendment
- Partial Incorporation: 5th Amendment, 6th Amendment
- No Incorporation: 3rd Amendment, 7th Amendment
Because of the nature of the 9th and 10th Amendments, it is unlikely they will ever be incorporated.
The Supreme Court may also engage in "reverse incorporation." Reverse incorporation, while rare, relies on the use of state law to fill in gaps within existing federal law or the federal constitutional structure.
This book, and all H2O books, are Creative Commons licensed for sharing and re-use with the exception of certain excerpts. Any excerpts from the Restatements of the Law, Principles of the Law, and the Model Penal Code are copyright by The American Law Institute. Excerpts are reproduced with permission, not as part of a Creative Commons license.