====== Incorporation Doctrine ======

The **Incorporation Doctrine** is the constitutional principle under which most protections in the U.S. Bill of Rights, originally understood to constrain only the federal government, have been applied against state and local governments through the Fourteenth Amendment. The doctrine's textual basis, and the proper method for determining which rights apply to the states, remain disputed; see [[incorporation-doctrine-textual-basis-viewpoint]] and [[incorporation-doctrine-method-debate]].

===== Current State of Knowledge or Debate =====

As applied by the U.S. Supreme Court, incorporation operates primarily through the Due Process Clause of the Fourteenth Amendment, a method generally termed "selective incorporation." Under this approach, the Court examines provisions of the Bill of Rights individually and incorporates those it deems "fundamental" to liberty or to the American scheme of justice, rather than incorporating the Bill of Rights wholesale. Most provisions have been incorporated; some-including the Third Amendment's prohibition on quartering troops, the Fifth Amendment's requirement of grand jury indictment in felony cases, and the Seventh Amendment's civil jury trial right-have not been ruled applicable to the states. A competing historical argument, associated with the dissents of Justice Hugo Black, holds that the framers of the Fourteenth Amendment intended the Privileges or Immunities Clause to accomplish full, automatic incorporation of the Bill of Rights against the states; this view did not prevail in *Slaughter-House Cases* (1873) but regained scholarly and some judicial attention after *McDonald v. City of Chicago* (2010). See [[incorporation-doctrine-history]] and [[incorporation-doctrine-privileges-or-immunities-viewpoint]].

The doctrine's development occurred case by case over more than a century, beginning from a baseline of non-incorporation; for the historical sequence, see [[incorporation-doctrine-history]].

===== Viewpoints =====

  * **Selective incorporation via Due Process**: The prevailing judicial approach, under which rights are incorporated individually upon a finding that they are fundamental. See [[incorporation-doctrine-selective-due-process-viewpoint]].
  * **Total incorporation via Privileges or Immunities**: The view that the Fourteenth Amendment's framers intended the Privileges or Immunities Clause to apply the entire Bill of Rights to the states automatically, and that *Slaughter-House Cases* wrongly foreclosed this reading. See [[incorporation-doctrine-privileges-or-immunities-viewpoint]].
  * **Originalist/textualist skepticism of substantive due process incorporation**: The view that using "due process"-a procedural guarantee-to incorporate substantive rights is doctrinally incoherent, even if Privileges or Immunities revival is also resisted on stare decisis or other grounds. See [[incorporation-doctrine-due-process-skeptical-viewpoint]].
  * **Living Constitution / fundamental rights approach**: The view that incorporation properly reflects an evolving judicial judgment about which rights are essential to ordered liberty, independent of fixed original meaning. See [[incorporation-doctrine-living-constitution-viewpoint]].
  * **Federalism-based opposition to incorporation**: The view, historically significant though now a minority position, that incorporation improperly displaces state authority and local self-governance over matters the Bill of Rights left to the states. See [[incorporation-doctrine-federalism-viewpoint]].

===== Controversies =====

  * The status of the right to a unanimous, twelve-person civil jury and the grand jury indictment requirement, neither incorporated against the states, has prompted recurring debate over whether selective incorporation should be considered complete. See [[incorporation-doctrine-unincorporated-rights-controversy]].
  * *McDonald v. City of Chicago* (2010), incorporating the Second Amendment, reopened public dispute over whether *Slaughter-House Cases* should be overruled in favor of a Privileges or Immunities approach. See [[incorporation-doctrine-mcdonald-privileges-or-immunities-controversy]].

===== Related Pages =====

  * History: [[incorporation-doctrine-history]]
  * Debate: [[incorporation-doctrine-method-debate]]
  * Viewpoint Debate: [[incorporation-doctrine-selective-due-process-viewpoint-debate]]
  * Controversy: [[incorporation-doctrine-mcdonald-privileges-or-immunities-controversy]]
  * Controversy: [[incorporation-doctrine-unincorporated-rights-controversy]]
  * Related Topics: [[bill-of-rights]], [[fourteenth-amendment]], [[due-process-clause]], [[privileges-or-immunities-clause]], [[substantive-due-process]]

===== Footnotes =====

  - Akhil Reed Amar, *The Bill of Rights: Creation and Reconstruction* (New Haven: Yale University Press, 1998).
  - Michael Kent Curtis, *No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights* (Durham: Duke University Press, 1986).
  - *Slaughter-House Cases*, 83 U.S. 36 (1873).
  - *McDonald v. City of Chicago*, 561 U.S. 742 (2010).
  - Charles Fairman, "Does the Fourteenth Amendment Incorporate the Bill of Rights?," *Stanford Law Review* 2, no. 1 (1949): 5-139.