The Doctrine of Incorporation
Among the various constitutional changes that have occurred as a result of Supreme Court rulings, the Court’s rule of interpretation known as the Doctrine of Incorporation has probably produced the most far-reaching reallocations of power. In our earlier discussion of the Bill of Rights, we noted that one of its principal objectives was to preserve intact State bills of rights under the new Constitution, and to protect the right of the States to define the scope and content of civil liberties in disputes between a State and its citizens. In Barron v. Baltimore (1833), a unanimous Supreme Court, speaking through Chief Justice Marshall, held that no provision of the Bill of Rights applied to the States.

Beginning in 1925 in the case of Gitlow v. New York, however, the Court initiated a series of decisions that resulted in the nationalization of the Bill of Rights. By 1947, every provision of the First Amendment had been made applicable to the States, and in the 1960s most provisions of the Bill of Rights protecting Federal criminal defendants were also applied to State proceedings. The vehicle used to accomplish this result was the Due Process Clause of the Fourteenth Amendment, which provides that, “No State shall deny any person life, liberty or property without due process of law.” Focusing on the word “liberty” in the clause, the Supreme Court expanded it to include various provisions of the Bill of Rights, thereby making the restrictions against the Federal government in the Bill of Rights applicable to the States through the Fourteenth Amendment. In this way, for example, freedom of the press was incorporated into the word “liberty” of the Fourteenth Amendment, thereby giving the Federal judiciary the final say on the scope and meaning of this freedom at both the State and Federal level through its power of judicial review.

Aside from the fact that the Doctrine of Incorporation has considerably enhanced the power of the Supreme Court and brought about a significant shift of power from the State to the national courts, this interpretive device has also resulted in extensive changes of the liberties themselves. Thus before the Supreme Court first applied the Establishment Clause of the First Amendment to the States in the landmark case of Everson v. Board of Education (1947), it was a common practice in many States to encourage religion and promote religious morality. Since 1947, however, the Supreme Court has held that almost any aid of any kind to religion constitutes an unconstitutional establishment of religion. This includes voluntary, nondenominational prayers in the public schools, which have been outlawed since 1962 as a result of Engel v. Vitale (the New York Prayer Case).

Many constitutional scholars question whether the Framers and backers of the Fourteenth Amendment intended by its provisions to abolish the federalism of the Bill of Rights and overturn Barron v. Baltimore, and the Doctrine of Incorporation has therefore engendered widespread criticism, even among members of the Federal Judiciary. Whatever its merits, the Doctrine of Incorporation represents a drastic transformation of power that serves to illustrate one of the ways in which the Constitution is changed without a clear mandate from the people and the States through the amendment process.