MBE Rules · Constitutional Law
Incorporation Doctrine
14th Amend. — incorporation (McDonald/Timbs)
The rule
Nearly all Bill of Rights guarantees apply to the states through Fourteenth Amendment due process — including the Second Amendment and Excessive Fines Clause; grand jury indictment and (historically) civil jury rights remain unincorporated.
In plain English
The Incorporation Doctrine is a legal principle that applies most of the protections in the Bill of Rights to state governments through the Due Process Clause of the Fourteenth Amendment. This means that states cannot infringe on these rights, such as freedom of speech or the right to bear arms, just as the federal government cannot.
Worked example
A state law prohibits citizens from carrying firearms in public, claiming it is necessary for public safety. A resident challenges this law, arguing that it violates their Second Amendment right, which is incorporated against the states. The court agrees, ruling that the state law is unconstitutional because it infringes on the right to bear arms.
Memory hook
Incorporation: Bill of Rights protections stick to states like glue through the Fourteenth Amendment.
The trap
Examiners may include questions that confuse students about which rights are incorporated and which are not, particularly with less commonly discussed amendments. Watch for traps involving the grand jury indictment or civil jury rights, which are not incorporated.
How examiners test it
Questions often present hypothetical state laws that conflict with incorporated rights, requiring candidates to identify the applicability of the Incorporation Doctrine. They may also test knowledge on which specific rights remain unincorporated.
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