Legal Definitions - incorporation doctrine

The incorporation doctrine is a fundamental principle in U.S. constitutional law that makes certain protections from the Bill of Rights (the first ten amendments to the U.S. Constitution) applicable to state and local governments, not just the federal government.

Originally, the Bill of Rights was understood to limit only the power of the federal government. This meant that states were not necessarily bound by these federal protections and could, for example, establish their own religions or restrict speech without violating the U.S. Constitution. However, after the Civil War, the Fourteenth Amendment was ratified, which includes a clause stating that no state shall "deprive any person of life, liberty, or property, without due process of law."

Over time, the U.S. Supreme Court interpreted this "Due Process Clause" of the Fourteenth Amendment to mean that certain fundamental rights outlined in the Bill of Rights are so essential to liberty and justice that states must also respect them. This process is known as "selective incorporation" because the Supreme Court has applied these rights to the states on a case-by-case basis, rather than incorporating the entire Bill of Rights all at once. As a result, many of the liberties we associate with the Bill of Rights, such as freedom of speech, protection against unreasonable searches, and the right to a fair trial, now apply equally to actions taken by state and local governments.

Here are some examples illustrating the incorporation doctrine:

• Example 1: Freedom of Speech and State Protest Laws

  Imagine a state legislature passes a law making it illegal to criticize public officials in any public forum, imposing heavy fines on anyone who does. A group of citizens organizes a peaceful protest against a local mayor and is subsequently arrested and fined under this new state law. They challenge the law in court, arguing it violates their right to freedom of speech.

  How this illustrates the term: The First Amendment to the U.S. Constitution guarantees freedom of speech. Through the incorporation doctrine, specifically via the Due Process Clause of the Fourteenth Amendment, this federal protection against government censorship is extended to state actions. Therefore, the state law restricting criticism of public officials would likely be struck down because it infringes upon a right (freedom of speech) that the incorporation doctrine makes applicable to the states.

• Example 2: Unreasonable Search and Seizure by Local Police

  A local police department, without obtaining a warrant or having any probable cause, breaks into a person's home and seizes their personal computer, believing it might contain evidence of a minor offense. The individual challenges the legality of the search and seizure in court, arguing that their Fourth Amendment rights were violated.

  How this illustrates the term: The Fourth Amendment protects individuals from unreasonable searches and seizures by the government. Before the incorporation doctrine, a state or local police department might not have been directly bound by this federal amendment. However, due to incorporation through the Fourteenth Amendment, the protection against unreasonable searches and seizures now applies to local police actions. The evidence seized without a warrant or probable cause would likely be deemed inadmissible in court because the local police violated a federally protected right that applies to them.

• Example 3: Right to Legal Counsel in State Criminal Cases

  A person is accused of a serious crime in a state court but cannot afford an attorney. The state judge informs them that they must represent themselves because the state does not provide lawyers for indigent defendants in this type of case. The defendant is convicted and appeals, arguing they were denied their right to legal representation.

  How this illustrates the term: The Sixth Amendment guarantees the right to counsel in criminal prosecutions. Through the incorporation doctrine, this crucial federal right has been applied to state criminal proceedings via the Fourteenth Amendment's Due Process Clause. Therefore, the state's failure to provide an attorney for an indigent defendant in a serious criminal case would be a violation of their Sixth Amendment rights, which the incorporation doctrine makes binding on the state.