Theories of Incorporation

By Ben Firke
Theories of Incorporation
Comstock/Comstock/Getty Images

Since its ratification in 1789, the U.S. Supreme Court applied various legal theories to the Bill of Rights. These include multiple, competing theories regarding whether the Bill of Rights should be applied (or "incorporated" in legal terms) to cases concerning state laws. While the Court originally understood the Bill to only concern federal laws, since 1925 the Court has incorporated the Bill of Rights into certain relevant rulings on state laws. The rationales for this legal doctrine are the "due process" and "privileges and immunities" clauses of the 14th Amendment. The process of applying the Bill of Rights to states has been dubbed the "incorporation doctrine" by legal experts.

Incorporation Theory 1789-1868

Following Congress's ratification of the Bill of Rights (the first 10 amendments to the Constitution), the Supreme Court considered those amendments only applicable to laws passed by the federal government. A landmark decision articulating this doctrine was "Barron v. Baltimore" in 1833. According to Wesley Phelan in his article, "Historical Overview: The Fourteenth Amendment and the Selective Incorporation of the Bill of Rights," Chief Justice John Marshall argued that the Bill of Rights only applied to federal law. His reasoning was that, since the U.S. Constitution was approved by Congress and a supermajority of the states ---- and the states each approved their own constitutions and laws ---- the Bill of Rights only had jurisdiction over federal laws made by Congress.

The 14th Amendment and the Slaughterhouse Cases

Following the Civil War and the abolition of slavery, Congress and the states ratified the 14th Amendment, which declared no citizen was to be "denied due process of the law." This amendment could be interpreted as a challenge to prevailing theory of incorporation, as legal experts speculated the clause protecting the "privileges and immunities" of citizenship could be applied to state laws denying individuals, such as the newly-freed African slaves, equal protection and due process. However, in what are known as the Slaughterhouse Cases of 1875 (regarding the legality of a meatpacking monopoly in Louisiana), the Court ruled that there was a distinction between state and federal citizenship. The Bill of Rights was thus not incorporated into cases regarding state laws until 1925.

Gitlow vs. New York and the Incorporation Doctrine

In 1925, the Supreme Court introduced the Incorporation Doctrine. In "Gitlow v. New York," Benjamin Gitlow challenged a New York statute that forbade him from advocating for the overthrow of the U.S. Government. Gitlow used the 14th Amendment to argue he was being denied his First Amendment right to free speech. The Court reversed its previous rulings and overturned the law on the basis of the First Amendment. Essentially, the Court reversed its doctrine and ruled that there was no distinction between state and federal citizenship in First Amendment cases, on the grounds that free speech was a basic human right that applied to all Americans regardless of their state of residence.

The Incorporation Doctrine Today

Following the Gitlow decision, the Supreme Court has ruled the Bill of Rights applies to most amendments in the Bill of Rights Gitlow has established a new legal doctrine of incorporating the Bill of Rights into court decisions regarding state laws violating the first 10 amendments to the Constitution. Protected rights include freedom of speech, religion and assembly, as well as freedom from various unethical legal processes in criminal and civil trials.

About the Author

Ben Firke is a freelance journalist and playwright who has been writing professionally since 2008. He is based out of Chicago and Middletown, Conn., and is a contributor to "Mindful Metropolis" and "ADLit" magazines and the "Choate Alumni Bulletin." His plays have been produced in Los Angeles and at Wesleyan University. Firke is pursuing a Bachelor of Arts in English and government from Wesleyan University.