Legal Definitions - total incorporation

Total incorporation is a legal theory concerning the application of the U.S. Bill of Rights to state governments. It posits that the Fourteenth Amendment'sDue Process Clause should make all of the protections outlined in the Bill of Rights directly applicable to the states, in their entirety, just as they apply to the federal government.

This theory suggests a comprehensive and immediate extension of all Bill of Rights provisions to state actions, rather than the prevailing approach of "selective incorporation," where the Supreme Court decides, on a case-by-case basis, which specific rights are fundamental enough to be applied to the states.

• Example 1: Hypothetical Immediate Impact on State Laws

  Imagine a scenario in the early 20th century where a state had laws allowing for non-unanimous jury verdicts in serious criminal cases and also permitted the quartering of soldiers in private homes during peacetime without the owner's consent. If the Supreme Court had adopted the theory of total incorporation at that time, both the Sixth Amendment's implied right to a unanimous jury verdict for serious crimes and the Third Amendment's prohibition against quartering soldiers would have immediately applied to that state. The state's existing laws would have been rendered unconstitutional without the need for separate court cases to determine if each specific right was "fundamental" enough to be incorporated against the states.

• Example 2: Protecting Less Frequently Invoked Rights

  Consider a state that passes a law eliminating the right to a jury trial in civil disputes involving more than twenty dollars, a right guaranteed by the Seventh Amendment. Under a total incorporation theory, this state law would be automatically invalid. The argument would simply be that the Seventh Amendment, like all other provisions of the Bill of Rights, applies directly to the states. There would be no need for legal advocates to argue that the Seventh Amendment is a "fundamental" right that should be selectively incorporated against the states; its application would be presumed.

• Example 3: A Scholar's Argument for Uniformity

  A legal scholar, observing that some rights in the Bill of Rights have still not been explicitly applied to the states through selective incorporation, might argue for total incorporation. This scholar could contend that such an approach would ensure a more consistent and robust protection of all individual liberties across the entire nation. Their argument would be that total incorporation would prevent states from infringing upon any enumerated right, thereby creating a uniform standard of constitutional protection without the piecemeal, right-by-right application that currently exists.