Elizabeth Wesonga
College U.S Government
Mr. King
Research Paper
11/24/19
Incorporation Doctrine
Our founding fathers made the constitution in order to define the structure of our federal
government; however, there were questions on the rights of the people who were being governed
and this lead to the creation of the Bill of Rights. The Bill of Rights consists of the first ten
amendments in the constitution that further defined the rights of the people. The Bill of Rights
was only applicable to the federal government and federal court cases. It was meant to prevent
the federal government from infringing on the individual rights of the people. The States could
choose to adopt similar laws, but they were not obligated to1.
In 1833, in a supreme court case, Barron v. Baltimore, the supreme court questioned
whether provisions of the fifth amendment were applicable to States and the Chief justice
concluded, “the Constitution was ordained and established by the people of the United States for
themselves, for their own government, and not for the government of the individual States. … If
these propositions be correct, the fifth amendment must be understood as restraining the power
of the General Government, not as applicable to the States” 2 He expresses the idea that because
this amendment is part of the constitution, the restrictions mentioned are applied to the federal
government and not the States. However, in 1865, Congress passed the 14 amendment and it
contained the due process clause that prevented states from making any law that was granted to
1
“Incorporation Doctrine.” Legal Information Institute. Legal Information Institute. Accessed November 22, 2019.
https://www.law.cornell.edu/wex/incorporation_doctrine.
2
Engel, Paul. “The Incorporation Doctrine.” The Constitution Study, December 5, 2018.
https://constitutionstudy.com/2018/12/28/the-incorporation-doctrine/.
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citizens of the United States through the constitution.3 This overturned the decision made in
Barron v. Baltimore when the Supreme Court acknowledged that the due process clause did in
fact incorporate some of the rights in the Bill of rights into states laws and called this the
Incorporation Doctrine. Throughout American history, the Supreme court has used the
Incorporation doctrine in different court cases to specifically apply the amendments into state
laws and this has lead to more restrictions on the power of individual state governments.
Although the Incorporation Doctrine was established back in the 1800s, the Supreme
court did not begin to directly apply specific amendments in the Bill of Rights to state
governments until the 1920s.4 In 1925, in the case Gitlow v. New York, Gitlow had been
convicted under New York State law for “advocation of violent efforts to overthrow the
government” and the Supreme Court upheld his conviction. 5 However, through this case, they
also directly incorporated the first amendment into the states’ law and emphasized that the states
could not infringe on an individual’s right to free speech. This meant that in order for the states
to determine what kind of speech was protected by the first amendment, they had to use the same
tests used by the Supreme court. For example, if a certain kind of speech had not violated the
clear and present danger test, the state could not convict an individual based on those reasons
because through the incorporation doctrine, this individual’s speech was protected by their First
Amendment right to free speech. The state and local governments could not individually decide
what was considered protected speech and this limited their powers.
3
Tindall, George Brown, and David E. Shi. America a Narrative History. New York: W.W. Norton & Co., 2013.
“The Fourteenth Amendment Due Process Clause.” 14th Amendment | The National Constitution Center.
Accessed November 25, 2019. https://constitutioncenter.org/interactive-constitution/interpretation/amendmentxiv/clauses/701.
5
"Gitlow v. New York." Oyez. Accessed November 27, 2019. https://www.oyez.org/cases/1900-1940/268us652.
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2
After the incorporation of the First Amendment , the Supreme Court expanded its use of
the doctrine and continued to apply more amendments to the state laws. However, there were
still debates on what amendments should be incorporated. The Supreme Court made it clear that
the Constitution did not allow the states to make any laws that violate the fundamental rights of
an individual and this became critical in deciding what should and should not be incorporated.6
The Supreme court had to decide what was considered a fundamental right and this affected
whether an amendment could be incorporated in its entirety or just certain rights given in that
amendment.
Although, the right to free speech had been incorporated in 1925, it was not until later
when the full first amendment was fully applied into state governments. Since the Bill of Rights
was previously only applicable to the federal government, people were protected from
censorship by the federal government; however, individual state governments still regulated
press.7 In the court case Near v. Minnesota, the Supreme Court struck down a law in Minnesota
that required the state’s approval of any newspaper before publication.8 The Supreme Court also
continued to establish that the “prior restraint on publication violated the first amendment right to
freedom of the press”.9 In addition, the Supreme Court decided in the case Cantwell v.
Connecticut that neither state nor federal government could not prohibit the free exercise of
religion. 10 Through these decisions, the first amendment was fully incorporated into the state
6
Vetter, Benjamin. "Fundamental Rights: History of a Constitutional Doctrine." Journal of Church and State,
Autumn 2001, 806. Gale OneFile: Educator's Reference Complete (accessed November 27, 2019).
https://link.gale.com/apps/doc/A82094394/PROF?u=nysl_se_orulb&sid=PROF&xid=d2e19c1f.
7
“Incorporation.” Bill of Rights Institute. Accessed November 23, 2019.
https://billofrightsinstitute.org/educate/educator-resources/landmark-cases/incorporation/.
8
Ibid.
9
Ibid.
10
"Cantwell v. Connecticut." Oyez. Accessed November 23, 2019. https://www.oyez.org/cases/19001940/268us652.
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laws and restricted the power of the state governments because they could not apply any laws
that violated an individual's right to freedom of speech, press or religion.
In discussing the Incorporation doctrine, it is important to understand the concept of
incrementalism which is the process of applying specific rights from the Bill of Rights on a case
by case basis.11 This is important because it portrays that in order for a right to be incorporated
into the state laws, there had to be a court case that showed that the state was violating this
fundamental right of a citizen. This meant that the incorporation of the whole Bill of Rights
would be gradual.
The 1960s were very monumental in the development of the Incorporation Doctrine
because several rights were finally incorporated in the state governments. To begin with, was the
right to deny unlawful search and seizure through the case of Mapp v. Ohio where the Supreme
court decided that any evidence was found against the restrictions of the Fourth Amendment
could not be used in both federal or state courts. 12 This decision emphasized that the exclusion
rule in the Fourth amendment was applicable to state governments and any court cases in state
court. Before this, state courts had the power to convict an individual based on any evidence
regardless of how it was obtained; however, with the incorporation of the exclusion rule, the
power of state courts was limited because they had to abide by these restrictions. In addition,
another right that was incorporated into the states governments was the right to an attorney for
any individual that could not afford one. This right was incorporated through the court case of
Gideon v. Wainwright when the Supreme Court decided that the state had to provide counsel for
11
“Selective Incorporation: Lesson Overview.” Khan Academy. Khan Academy. Accessed November 27, 2019.
https://www.khanacademy.org/humanities/us-government-and-civics/us-gov-civil-liberties-and-civil-rights/us-govselective-incorporation/a/lesson-summary-selective-incorporation.
12
"Mapp v. Ohio" Oyez. Accessed November 23, 2019. https://www.oyez.org/cases/1962/155
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any accused at the expense of the public.13 In making this decision, the Supreme Court
incorporated the right to an attorney, given by the Sixth Amendment, into the state laws.
Therefore, it was not only the responsibility of the Supreme court to provide an attorney to the
accused, but also that of the state courts. The right to an attorney is significant because during the
development of the constitution, the British had denied this right to anyone accused of a felony
or treason14; however with the ratification of the sixth amendment and the incorporation doctrine,
any one accused of crime is entitled to this right on both the state and federal level. The
incorporation of this right was successful in restricting the power of state governments because
they were now obligated to treat the accused fairly and this prevented them from using their
power to wrongfully convict an individual in a state court. Lastly, in 1966, the Supreme Court, in
the case of Parker v. Gladden, ruled that the bailiff’s statement was outside talk and did not
affect the jury’s decision.15 However, Justice Harlan disagreed with the rest of the Supreme
Court’s decision and he continued to emphasize that the right to trial by an impartial jury was
applicable to the states. 16 Through this court case, the states were now required to pay attention
to how the jury reached its verdict in order to make sure that there was no bias. The
incorporation of this right also lead to the emphasis of the state courts to uphold the rights of the
accused and because of this, citizens become more attentive to their individual state governments
to avoid the violation of their fundamental rights on not only the federal, but also the state level.
The incorporation doctrine was also crucial in the 1960s because there were many civil rights
movements especially about the rights of African Americans because some states denied them
13
"Gideon v. Wainwright." Oyez. Accessed November 25, 2019. https://www.oyez.org/cases/1962/155
“Incorporation.” Bill of Rights Institute. Accessed November 26, 2019.
https://billofrightsinstitute.org/educate/educator-resources/landmark-cases/incorporation/.
15
"Parker v. Gladden." Oyez. Accessed November 27, 2019. https://www.oyez.org/cases/1966/81.
16
Ibid.
14
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these fundamental rights.17 However, because the incorporation doctrine directly applied specific
rights to the state laws, this could restrict state governments from denying African American
citizens the rights that had been incorporated by the Supreme Court.
Furthermore, the Incorporation Doctrine extended to the right of privacy even though this
right was not explicitly stated in the Constitution. In 1973, in the case Roe v. Wade, the Supreme
Court ruled that a woman’s right to have an abortion was under her right to privacy given
through the fourth amendment and therefore, through the due process clause, the states could not
make laws prohibiting women from having abortions.18 Prior to this, states could pass laws
prohibiting abortions and since it was illegal, many women could be arrested together with their
physicians who were involved; however, this decision lead to the incorporation of the right to
privacy into states’ laws and restricted the state governments’ powers in interfering with
abortions. This meant that abortion could not be considered illegal in both the federal and state
courts. This case is significant in the development of incorporation doctrine because abortion is a
controversial issue in many states today. Although the Supreme Court clearly incorporated this
right into state laws, many states today continue to fight it; some putting regulations on the
process, and others seeking to pass laws that completely ban it in their state. 19 This shows the
Incorporation Doctrine has not been fully supported and some states may be against it or seek to
reverse it because they believe that the federal government is encroaching on the power of the
state governments.
The Incorporation doctrine continues to evolve, with the Supreme Court using it in even
its recent cases. For example, in 2010, the right to keep and bear arms was incorporated into the
17
Tindall, George Brown, and David E. Shi. America a Narrative History. New York: W.W. Norton & Co., 2013.
"Roe v. Wade" Oyez. Accessed November 26, 2019. https://www.oyez.org/cases/1966/81.
19
“Abortion Policy in the Absence of Roe.” Guttmacher Institute, November 18, 2019.
https://www.guttmacher.org/state-policy/explore/abortion-policy-absence-roe.
18
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states through the case of McDonald v. Chicago where the Supreme court ruled that Illinois’ ban
on guns was a violation of the second amendment right.20 This incorporation limited the states
power to pass laws that restrict citizens from owning guns needed for self defense. Although this
right has been incorporated, there were still many questions on whether the right to bear arms
was considered a fundamental right and if it could be incorporated through the Due Process
clause.21 The incorporation of the second amendment rights did not come into question until the
twentieth century because weapons had become more advanced over the years and so states
sought to restrict the use and ownership of guns by their citizens. This is also applicable to today
because the issue of gun laws is more controversial today than it has ever been. Both the federal
and state governments are changing the interpretation of the second amendment and this could
lead to new regulations. 22 This can further lead to questions on whether these new
interpretations would also be incorporated into the state laws.
In conclusion, these court cases are examples of how the Supreme Court has used the
Incorporation Doctrine, through the due process clause of the fourteenth amendment, to apply
some of the rights and provisions in the Bill of Rights and therefore restricting the power of state
governments. However, even though the incorporation doctrine has been successful, there are
still some rights that have not been incorporated. These include the third, seventh, ninth and tenth
amendments and also parts of the fifth, sixth, and eighth amendments.23 Because the
incorporation has gradually extended to different amendments since 1865, we can predict that
20
"McDonald v. Chicago." Oyez. Accessed November 27, 2019. https://www.oyez.org/cases/2009/08-1521.
“Incorporation.” Bill of Rights Institute. Accessed November 27, 2019.
https://billofrightsinstitute.org/educate/educator-resources/landmark-cases/incorporation/.
22
“United States: Gun Ownership and the Supreme Court.” Second Amendment | Law Library of Congress, May 1,
2012. https://www.loc.gov/law/help/usconlaw/second-amendment.php.
23
“Incorporation Doctrine.” Legal Information Institute. Legal Information Institute. Accessed November 22, 2019.
https://www.law.cornell.edu/wex/incorporation_doctrine.
21
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these rights could soon be incorporated into the states’ laws in the future through new court cases
and continue the restriction of power in the individual state governments.
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11
https://constitutionstudy.com/2018/12/28/the-incorporation-doctrine/
https://www.law.cornell.edu/wex/incorporation_doctrine
https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights
https://lonang.com/commentaries/conlaw/bill-of-rights/the-incorporation-doctrine/
https://billofrightsinstitute.org/educate/educator-resources/landmark-cases/incorporation/
https://billofrightsinstitute.org/educate/educator-resources/lessons-plans/landmark-supremecourt-cases-elessons/near-v-minnesota-1931/
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