Define incorporation and explain the four types of incorporation discussed in your textbook. Which type of incorporation is used in the courts today?

Question

What will be an ideal response?

Answer 1

The issue of incorporation arose when the Supreme Court interpreted the due process clause of the
Fourteenth Amendment, which says no state shall deprive a person of life, liberty, or property without
“due process of law,” as prohibiting states from abridging certain individual rights. The different types of
incorporation indicate how much of and which rights are granted by the states. Total incorporation of the
due process clause of the Fourteenth Amendment made the entire Bill of Rights applicable to the states.
Total incorporation plus of the due process clause of the Fourteenth Amendment includes all of the Bill of
Rights and, in addition, includes other, unspecified rights. Ordered liberty is used when there is no
necessary relationship between the due process clause of the Fourteenth Amendment and the Bill of
Rights. Ordered liberty uses the “totality of circumstances” component. Selective incorporation combines
elements of the fundamental rights and total incorporation approaches in modified form and is the
approach that seems to predominate in most Supreme Court cases. This approach favors a piecemeal,
gradual, and selective method of incorporation. Selective incorporation rejects the notion that all of the
rights in the Bill of Rights are automatically incorporated in the due process clause of the Fourteenth
Amendment, but it does look to the Bill of Rights as a guide to the meaning of due process.