The Doctrine of Incorporation

Paper Summary:

This paper elucidates the multifaceted dimensions that encompass the arguments for and against the doctrine of incorporation and it identifies where the Supreme Court stands today on the issue. It discusses the events leading up to the ratification of the Fourteenth Amendment, the legislation's intent for ratifying the Fourteenth Amendment and the explicit language of the pertinent clauses in the Fourteenth Amendment. The paper also traces the doctrine of incorporation through the promulgation of common law holdings.

From the Paper:

"William Crosskey, in contrast to Fairman, rejected the court-centered approach to the original understanding of the Fourteenth Amendment. His incorporation thesis emerged as a result of his claim for a extended congressional authority (Brandwein 1996). Crosskey thought that the amendment should be seen in the light of Old Republican constitutional ideas (Curtis 1986). Under this light, Crosskey considered the privileges and immunities clause of the Article IV, section 2 to provide that the citizen of each state would be entitled to all the rights of a citizen of the United States in every state; that the Fifth Amendment guaranty of due process should require the government to supply equal protection in the right of life, liberty, and property; the Bill of Rights should be limits to the states even prior to the Fourteenth Amendment (Curtis 1986)."

Sample of Sources Used:

• Amar, Akhil Reed. 1992. "The Bill of Rights and the Fourteenth Amendment." Yale Law Journal.
• Aynes, Richard. 1992. "Misreading John Bingham and the Fourteenth Amendment." Yale Law Journal.
• Barron v. The Mayor and City Council of Baltimore. 1833. 32 U.S. 243, 8 L.Ed. 672.
• Brandwein, Pamela. 1996. "Dueling Histories: Charles Fairman and William Crosskey Reconstruct 'Original Understanding.'" The Law and Society Review 30: 289-334.
• Brandwein, Pamela. 1999. Reconstructing Reconstruction: the Supreme Court and the Production of Historical Truth. Durham, NC: Duke University Press.

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