Legal Definitions - incorporation (of the Bill of Rights)

Incorporation (of the Bill of Rights) is a legal principle that makes the protections found in the Bill of Rights, which originally applied only to the federal government, also applicable to state governments. This process occurs through the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. Essentially, it means that states cannot infringe upon certain fundamental rights that the Bill of Rights guarantees against federal government action.

Here are some examples illustrating the concept of incorporation:

• Example 1: Freedom of Speech in a State University

  Imagine a state university attempts to implement a policy that prohibits students from distributing leaflets on campus that express critical views of the state governor. The university argues that such activities disrupt the educational environment.

  This situation illustrates incorporation because the First Amendment guarantees freedom of speech. While the First Amendment initially restricted only the federal government, through incorporation, this protection now applies to state governments and their institutions, such as a state university. Therefore, the university's policy would likely be challenged as unconstitutional, as it infringes upon the students' incorporated First Amendment right to free speech, just as the federal government would be prohibited from enacting such a ban.

• Example 2: Protection Against Unreasonable Searches by Local Police

  Consider a scenario where a city police department, operating under state authority, establishes a practice of conducting random, warrantless searches of people's cars at traffic stops without any suspicion of wrongdoing. They claim this is a measure to deter crime.

  This example demonstrates incorporation because the Fourth Amendment protects individuals from unreasonable searches and seizures by the government. Due to incorporation, this constitutional protection extends to state and local law enforcement agencies. Consequently, the city police department's practice would likely be deemed unconstitutional, as it violates the incorporated Fourth Amendment right that generally requires a warrant or probable cause for searches, thereby preventing state and local authorities from engaging in such broad, unjustified intrusions.