incorporation doctrine
Overview
The incorporation doctrine is a constitutional doctrine through which the first ten amendments of the United States Constitution (known as the Bill of Rights) are made applicable to the states through the
Due Process clause of the
Fourteenth Amendment. Incorporation applies both substantively and procedurally. Prior to the doctrine's (and the Fourteenth Amendment's) existence, the Bill of Rights applied only to the Federal Government and to federal court cases. States and state courts could choose to adopt similar laws, but were under no obligation to do so.
After the passage of the Fourteenth Amendment, the Supreme Court favored a process called “
selective incorporation.” Under selective incorporation, the Supreme Court would incorporate certain parts of certain amendments, rather than incorporating an entire amendment at once.
Some argue that Privileges or Immunities Clause is a more appropriate textual basis than the due process clause for incorporation of the Bill of Rights but because Slaughter-House Cases dealing with this clause are surrounded by controversy this theory is not supported by the majority of the court.
As a note, the
Ninth Amendment and the
Tenth Amendment have not been incorporated, and it is unlikely that they ever will be. The text of the Tenth Amendment directly interacts with state law, and the Supreme Court rarely relies upon the Ninth Amendment when deciding cases.
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Slaughter-House Cases
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See this too:
Tue Jun 21, 2022:
No, the First Amendment is fully incorporated.
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