Also known as: incorporation doctrine · incorporation
Written by attorneys · grounded in primary & secondary sources — see below
A constitutional doctrine by which most provisions of the Bill of Rights are applied to the states through the Due Process Clause of the Fourteenth Amendment. The doctrine operates by selective incorporation of individual rights that are fundamental to ordered liberty.
Doris Duffy is prosecuted in state court for the same offense after a federal acquittal. She moves to dismiss on double jeopardy grounds. The court applies the Fifth Amendment bar to the state proceeding because the doctrine of incorporation extends the protection through the Fourteenth Amendment.
Diana Delgado's will leaves her residuary estate to an unfunded inter vivos trust. The probate court upholds the devise under a state statute that expressly validates pour-over provisions. The doctrine of incorporation supplies no basis for giving effect to the trust terms.
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Darius Dixon challenges a state handgun ban after his application is denied. The court holds that the Second Amendment right applies to the states. Incorporation through the Fourteenth Amendment Due Process Clause supplies the constitutional foundation for the claim.
David Dawson's will refers to a separate list of personal property dispositions. Although the list is unattested and lacks independent significance, a state statute permits the devise. The doctrine of incorporation supplies no authority to control distribution without satisfying traditional will formalities.
Denise Donovan invokes the privilege against self-incrimination during a state grand jury proceeding. The court recognizes the Fifth Amendment protection as binding on the state. The doctrine of incorporation supplies the mechanism that extends the federal guarantee to state actors.
Dustin Donovan forms an LLC with members in multiple states and sues in federal court. The court determines citizenship by reference to the members rather than any state of formation. The doctrine of incorporation is not applied to treat the LLC like a corporation for jurisdictional purposes.
The grand jury clause of the Fifth Amendment and the Seventh Amendment right to jury trial in civil cases remain unincorporated. All other provisions have been applied to the states through selective incorporation.
No. The Supreme Court uses selective incorporation, applying only those rights that are fundamental to ordered liberty rather than incorporating the entire Bill of Rights at once.
State prosecutions must comply with incorporated federal constitutional standards such as the double jeopardy prohibition and the privilege against self-incrimination. This ensures uniform minimum protections across state and federal systems.
…in a State constitution or law to the contrary notwithstanding. Among the enumerated powers we do not find the word "bank" or "incorporation," but the Constitution does not, like the Articles of Confederation, exclude incidental or implied powers. The 10th Amendment omitted the word "expressly" and declared only that the powers…