Incorporation of the Bill of Rights

1. Incorporation of the Bill of Rights • The Doctrine of Incorporation holds that a liberty or property interest is applied to the states using the Due Process Clause of the 14th Amendment. • The Doctrine of Incorporation is the mechanism whereby the Bill of Rights is applied to the states. The Supreme Court has incorporated the Bill of Rights into the 14th Amendment’s Due Process Clause in a “piecemeal” fashion (Selective), rather than all at once (Total).

2. Procedural Due Process • The right to due process (procedural) means that the government cannot infringe upon citizens' rights without fair procedures. • Due process cases are most immediately concerned with whether a citizen's life, liberty or property has been threatened by government action.

3. Procedural Due Process • Points to ask in procedural due process cases: 1. First, does due process apply? When is one entitled to fair procedures? 2. Second, what kinds of procedures are required? Remember that the courts try to balance the importance of the procedures to the individual against the time and expense the procedures would impose on the government. Is the liberty or property interest of sufficient magnitude to the individual to justify lengthy and expensive due process procedures?

4. Substantive Due Process • Substantive Due Process of Law operates under that same two provisions of the Constitution that Procedural Due Process of Law operates. However, when the Court applies Substantive Due Process they ARE NOT checking for fair procedures. Rather, the Court is checking to see whether the substance of a law denies a person LIFE, LIBERTY, or PROPERTY.

5. Substantive Due Process •  Substantive Due Process was first used by the Court in the Dred Scott decision in 1857. In that case, the Supreme Court ruled that the Missouri Compromise was unconstitutional because the meaning of the Missouri Compromise denied people property (slaves).