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Incorporation Doctrine

Medha Godbole May 13, 2019
A portion of The Bill of Rights was made applicable by the American courts to the states, with the help of the Incorporation doctrine. Read on to know more about this doctrine.
The process of growth of a nation is extremely tumultuous and replete with all the twists and turns one can imagine. The journey is akin to that of a river, passing through the boulders, mountainous slopes, plains and then the endeavor comes to an end with it conjoining the ocean. The same is with the formation and ascension of a nation.
The USA too was not an exception to the struggle for freedom, sovereignty and democracy. The Bill of Rights in the US constitution was one of the pivotal aspects which guarantees freedom and right to live to the American citizens. However, just inclusion of such directives doesn't work.
The US Congress, thus, passed a constitutional doctrine called the Incorporation Doctrine. Simply put, it makes the Bill of Rights binding on the Congress. The text further will deal in details of this doctrine.

What is the Incorporation Doctrine

This doctrine is a tool for making first 10 amendments to the constitution, that is the Bill of Rights binding to the states in the USA. Initially the Bill of Rights was applicable only to the Federal Government, but because of the Incorporation Doctrine, maximum provisions of the Bill of Rights are applicable to the state and local governments.
This is as a consequence of the due process clause of the Constitution's 14th Amendment. The major change this doctrine brought about was that it brought the Federal and the state governments on the same level, with regards to basic constitutional rights - freedom of speech, religion, freedom of press and so on. Bill of Rights is binding on all the states.
The Bill of Rights also ensures immunity and protection from unwarranted arrest. The doctrine was divided into two parts - Selective Incorporation and Total Incorporation. The Supreme Court gradually issued a series of decisions which incorporated a few from the specific rights from the Bill of Rights.
Incorporation Doctrine of the 14th amendment expanded the civil rights and protection of the American citizens to a large extent.
In a case, Duncan vs. Louisiana, this view was reflected - "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States". This makes it clear enough that the Bill of Rights was made to apply to the states as well. To be specific, the first 8 amendments have a connection with this doctrine.
The 9th Amendment is a rule related to how to read the constitution and the 10th amendment is not listed, though it mentions about reservation of powers to the state and people. Felix, Frankfurter, a Justice was of the opinion that this process should be incremental and his was a due process interpretation.
Due to his arguments, the court did not apply the Incorporation Doctrine till 1962, post Frankfurter's retirement. But then ultimately most of the provisions were incorporated in the Bill of Rights.
The incorporation done is termed as selective and not complete, as few portions of the doctrine have been made applicable to the states. Check out more about Bill of Rights in explanation of the Bill of Rights.
At the end of the day, there is only one glitch regarding the incorporation of these rights. There are a few amendments which have not been incorporated. These are the second, third and seventh amendments. These are freedom to bear arms, freedom to quarter soldiers and right to jury trial in a civil case respectively.