Also known as:incorporation process · incorporation
Written by attorneys · grounded in primary & secondary sources — see below
A constitutional doctrine under which most provisions of the Bill of Rights are applied to the states through the Due Process Clause of the Fourteenth Amendment.
Sources & Authorities· 23 primary sources
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Cases
Uniform Acts
How it applies
Common Examples
6
Corporation Not At Home For General Jurisdiction
State prosecutors charge a defendant with an offense after a federal acquittal on the same facts. The court holds the Double Jeopardy Clause applies to the state proceeding because the Fifth Amendment was incorporated against the states via the Fourteenth Amendment Due Process Clause.
Pour-Over Devise Validated By Incorporation
A city ordinance bans possession of handguns in the home. The court strikes down the ordinance because the Second Amendment right to keep and bear arms was incorporated against the states through the Fourteenth Amendment Due Process Clause.
Extensive Forum Business Does Not Create At Home Status
After a state conviction, the defendant argues that the grand-jury clause was not incorporated. The court rejects the claim, noting that the Fifth Amendment grand-jury requirement remains one of the few unincorporated Bill of Rights provisions.
Unattested Writing Validated By Statute
State police conduct a warrantless search of a home. The defendant moves to suppress, claiming Fourth Amendment incorporation. The court applies the incorporated warrant requirement and excludes the evidence obtained in violation of the Fourth Amendment.
Continuous Sales Insufficient For General Jurisdiction
A state statute requires a defendant to testify or face adverse inferences. The court holds the Fifth Amendment privilege against self-incrimination applies because it was incorporated through the Fourteenth Amendment Due Process Clause.
LLC Citizenship Determined By Members
After acquittal in federal court, a state brings the same charges. The defendant successfully invokes the incorporated Double Jeopardy Clause, barring the state prosecution under the Fourteenth Amendment.
Common questions
Frequently Asked
3
Which constitutional provision serves as the vehicle for incorporating Bill of Rights protections against the states?+
The Due Process Clause of the Fourteenth Amendment serves as the vehicle. Through it, most Bill of Rights guarantees are made applicable to state action.
Does the process of incorporation apply every Bill of Rights provision to the states?+
No. The process is selective. Most provisions have been incorporated, but a few such as the grand jury requirement and the Third Amendment have not been.
When was the process of incorporation first expressly discussed by the Supreme Court?+
The Court first expressly discussed the process in Twining v. New Jersey in 1908, though it later reversed course on the specific right at issue there.
381 U.S. 479 (1965)Constitutional Law
…by the letter or penumbra of the Bill of Rights. In other words, what I find implicit in the Court's opinion is that the "incorporation" doctrine may be used to restrict the reach of Fourteenth Amendment Due Process. For me this is just as unacceptable constitutional doctrine as is the use of the "incorporation" approach…