The Principles of Incorporation in the 14th Amendment

By Tasos Vossos
A primary issue of the 14th Amendment is whether it incorporates the Bill of Rights.
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The issue of the incorporation of the Bill of Rights in the 14th Amendment and their application to individual states is a long-lasting legal debate, according to the University of Missouri School of Law. As stated in its project "Exploring Constitutional Conflicts," the U.S. Supreme Court's view of which provisions of the Bill of Rights to incorporate is selective and has gone through several changes since the amendment's first interpretation in the Slaughter-House cases of 1873.

"Incorporation" Section of the 14th Amendment

The first section of the 14th Amendment states: "... No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Incorporation Defined

Incorporation in the 14th Amendment refers to including the Bill of Rights, the first 10 amendments to the U.S. Constitution, among these "privileges or immunities of citizens of the United States." Before the 14th Amendment was ratified, the Supreme Court (in the Barron v. Mayor & City Council of Baltimore case of 1833) had ruled that "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 individual States," essentially making the Bill of Right applicable only on federal level.

"No state shall ..."

According to Akhil Reed Amar's work "The Bill of Rights and the Fourteenth Amendment," the choice of the exact words in the sentence "No State shall make ... the United States" is critical to understanding the point of incorporation. As the legal scholar suggests, the 14th Amendment cloned the language of the First Amendment to express that even rights guaranteed by the latter, which explicitly limited the power of the Congress, should apply against individual states.

Due Process Clause

The due process clause, as defined in the first section of the 14th Amendment, denies the right of state and local governments to deprive persons of life, liberty or property when they have not followed the steps required by the letter of the law. According to "Exploring Constitutional Conflicts," after the Slaughter-House Cases, the attention of the Supreme Court focused on the due process clause as a guarantee of individuals' rights. Therefore, the clause became a means of making the Bill of Rights applicable to the states.

About the Author

Tasos Vossos has been a professional journalist since 2008. He has previously worked as a staff writer for "Eleftheros Tipos," a leading newspaper of Greece, and is currently a London-based sports reporter for Perform Sports Media in the United Kingdom. He holds a Bachelor of Arts in communication and media from the University of Athens.