What is the Incorporation Doctrine?
As described, the incorporation of the Bill of Rights is the process by which American courts have applied portions of the U.S. Bill of Rights to the states, by virtue of the due process clause of the Fourteenth Amendment of the Constitution.
The Fourteenth Amendment and Moving Towards Incorporation
In Barron v. Baltimore (1833), the Supreme Court declared that the Bill of Rights applied to the federal government, and not to the states. Some argue that the intention of the creator of the Fourteenth Amendment was to overturn this precedent.
The Fourteenth Amendment to the Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments. Its Due Process Clause prohibits state and local governments from depriving persons of life, liberty, or property without certain steps being taken to ensure fairness. This clause has been used to make most of the Bill of Rights applicable to the states, as well as to recognize substantive and procedural rights .
14th Amendment of the United States Constitution
The Fourteenth Amendment, depicted here, allowed for the incorporation of the First Amendment against the states.
The first instance of incorporation include the case Chicago, Burlington and Quincy Railroad v. City of Chicago (1897), in which the Supreme Court required just compensation for property appropriated by state or local authorities (so this was an application of the Fifth Amendment in the Bill of Rights). More commonly, it is argued that incorporation began in the case Gitlow v. New York (1925), in which the Court expressly held that States were bound to protect freedom of speech. Since that time, the Court has steadily incorporated most of the significant provisions of the Bill of Rights.
Selective Incorporation
In Adamson v. California (1947), Supreme Court Justice Hugo Black argued in his dissent that the Supreme Court should pursue nationalization of the Bill of Rights. Despite his opinion, in the following twenty-five years, the Supreme Court employed a doctrine of selective incorporation that succeeded in extending to the States almost of all of the protections in the Bill of Rights, as well as other, unenumerated rights. The Fourteenth Amendment has vastly expanded civil rights protections and is cited in more litigation than any other amendment to the U.S. Constitution.
Which Amendments Have Been Incorporated?
By the latter half of the 20th century, nearly all of the rights in the Bill of Rights had been applied to the states, under the incorporation doctrine.
All of the provisions of Amendment I and Amendment II have been incorporated against the state, while the Third Amendment has not yet been incorporated (the Third Amendment refers to the prohibition on quartering of soldiers in civilian homes).
Amendment IV, unreasonable search and seizure, has been incorporated against the states by the Supreme Court's decision in Wolf v. Colorado (1949). The exclusion of unlawfully seized evidence has been incorporated against the states in Mapp v. Ohio (1961).
Amendment V, the right to indictment by a grand jury, has been held not to be incorporated against the states, but protection against double jeopardy and protection against self-incrimination have been incorporated against the states in Malloy v. Hogan (1964) .
Incorporating Amendment V
Here, a US law enforcement official reads an arrested person his rights. Amendment V, the right to due process, has been incorporated against the states.
Amendment VI, the rights to a speedy, public, and impartial trial have been incorporated against the states, as has the right to counsel in Gideon v. Wainwright (1963) .
Incorporating Amendment VI
Amendment VI, the right to a trial by a jury and the right to counsel, was incorporated against the states in the case Gideon v. Wainwright (1963). Here, this right is exercised as an attorney asks questions during jury selection.
Amendment VII, right to a jury trial in civil cases, has been held not to be applicable to the states.
Amendment VIII, the right to jury trial in civil cases has been held not to be incorporated against the states, but protection against "cruel and unusual punishments" has been incorporated against the states.
Amendments IX and X have not been incorporated against the states, as they apply expressly to the federal government alone.