How the Incorporation Doctrine Has Been Protecting Your Rights for Decades

Posted by Joseph D. Lento | Apr 19, 2019 | 0 Comments

In a recent blog post, we discussed a rather theoretical question: Does a jury have to be unanimous to convict someone of a crime?

The answer raised an even more theoretical idea: The incorporation doctrine. While very conceptual, the incorporation doctrine has had a far larger impact on your rights as a U.S. citizen than you would expect.

The U.S. Constitution and Your Rights

The U.S. Constitution does two things:

  1. It outlines what the federal government is and what it can do
  2. It prohibits the federal government from doing certain things to citizens

This second part of the Constitution is found in the Bill of Rights. Some of the things that it forbids are searches and seizures that are unreasonable and depriving someone of due process when their life, liberty, or property are on the line.

However, the first three lines of the Bill of Rights are some of its most important: “Congress shall not…”

Because “Congress” means the federal government in the Constitution, it would seem that all of those rights for individuals created in the Bill of Rights could be trampled on by state governments.

Enter: The 14th Amendment

This wasn't much of a problem until after the Civil War, when southern states used their powers to deprive newly freed slaves of their constitutional rights by passing so-called “Jim Crow laws.”

This led to the passage of the 14th Amendment, which targeted the actions of state governments: “No State shall… deny to any person within its jurisdiction the equal protection of the laws.” This meant that state governments could no longer infringe on an individual's rights in ways that the federal government could not.

However, there was still no explicit statement about which of those rights applied to state government conduct.

How the Incorporation Doctrine Has Protected Your Rights

Rather than say that the 14th Amendment applied all of the Bill of Rights to actions done by state governments, the U.S. Supreme Court has applied them piecemeal by incorporating rights from individual amendments into the 14th Amendment and applying them to state conduct. For example:

The process of incorporating federal rights in the 14th Amendment and protecting them from state action is still ongoing: The Eighth Amendment's prohibition against excessive fines was only incorporated a couple of months ago.

It's hard to understate the importance of the incorporation doctrine, especially for the constitutional rights guaranteed to criminal defendants. Without the incorporation of the Fourth Amendment, the FBI would have to get a warrant to search your house for evidence of a drug crime, but the local police could just break down the door.

Criminal Defense Lawyer Joseph D. Lento Serves Philadelphia

If you have been accused of a crime in Philadelphia, criminal defense lawyer Joseph D. Lento can help you fight the charges. Contact him online or call his law office at (215) 535-5353.

About the Author

Joseph D. Lento

"I pride myself on having heart and driving hard to get results!" Attorney Joseph D. Lento passionately fights for the futures of his clients in criminal courtrooms in Philadelphia and across Pennsylvania as well as in New Jersey and nationwide. He does not settle for the easiest outcome, and instead prioritizes his clients' needs and well-being. With unparalleled experience occupying several roles in the criminal justice system outside of being an attorney, Joseph D. Lento can give you valuable behind-the-scenes insight as to what is happening during all phases of the legal process. Joseph D. Lento is licensed in Pennsylvania, New Jersey, and New York, and is admitted pro hac vice as needed nationwide. In the courtroom and in life, attorney Joseph D. Lento stands up when the bell rings!


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