Incorporation theory refers to the act of the U.S. Supreme Court applying federal protections in the Bill of Rights to the states using the Fourteenth Amendment to the U.S. Constitution, according to Bill of Rights Institute. Under this theory, both federal and state laws must adhere to certain amendments in the Bill of Rights.
The U.S. Supreme Court decided to use “selective incorporation,” according to Professor Stephen Shapiro of the University of Baltimore. This means that the justices did not declare the entire document as applicable to the states. Instead, the Supreme Court incorporated each expressed right individually. Incorporation began in 1897 and continued through the 1960s. Though the original intent of the Bill of Rights applied only to the federal government, subsequent court cases and laws found the need for expansion of the rights. The Fourteenth Amendment under the “due process” clause gave the U.S. Supreme Court the authority to incorporate each right.
Rights not under incorporation include the Second Amendment, the Third Amendment, part of the Fifth Amendment and the Seventh Amendment, according to the College of the Redwoods. Citizens must present a case that includes the need for incorporation in order for these amendments to apply to the states as well.