Which of the incorporation doctrine is true
There are several incorporation doctrines, so it depends on which specific doctrine you are referring to. However, one commonly accepted doctrine is the "Selective Incorporation" doctrine. This doctrine holds that the provisions of the Bill of Rights apply to the states through the Due Process Clause of the Fourteenth Amendment, but not all provisions of the Bill of Rights have been incorporated. The Supreme Court has selectively incorporated various provisions on a case-by-case basis over time.
The incorporation doctrine is a judicial interpretation of the Fourteenth Amendment of the United States Constitution. It refers to the process by which certain provisions of the Bill of Rights are applied to the states through the Due Process Clause of the Fourteenth Amendment.
There are two main doctrines associated with incorporation: selective incorporation and total incorporation.
1. Selective Incorporation: This doctrine holds that only fundamental rights, which are considered to be essential to the concept of ordered liberty, are automatically applied to the states. Under selective incorporation, the Supreme Court has examined specific provisions of the Bill of Rights and determined whether they should be applied to the states. This approach allows for a more flexible analysis and gives the Court the ability to decide which specific rights should be incorporated on a case-by-case basis.
2. Total Incorporation: This doctrine argues that all provisions in the Bill of Rights should be automatically applied to the states without any exceptions. Advocates of total incorporation believe that the Fourteenth Amendment's Due Process Clause requires that all protections in the Bill of Rights be extended to all individuals, regardless of whether the provision is considered fundamental or not.
In summary, both selective incorporation and total incorporation are positions regarding the incorporation of the Bill of Rights to the states, but selective incorporation is the currently accepted doctrine by the Supreme Court.
The incorporation doctrine refers to the process by which the U.S. Bill of Rights, which originally applied only to the federal government, has been extended to also apply to the state governments through the Fourteenth Amendment. The incorporation doctrine ensures that citizens' constitutional rights are protected against state infringement.
There are several principles and tests that have been used by the courts to determine whether a particular provision of the Bill of Rights should be incorporated and applied to the states. Here are three main approaches:
1. Selective Incorporation: This approach originated with the 1925 case Gitlow v. New York. Under selective incorporation, the Supreme Court reviews each specific provision of the Bill of Rights and decides whether it should be applied to the states through the Due Process Clause of the Fourteenth Amendment. This approach has been used to gradually apply most of the rights from the Bill of Rights to the states.
2. Total Incorporation: Some legal scholars argue for total incorporation, which means that all provisions of the Bill of Rights should automatically be applied to the states without selective judicial review. However, this viewpoint has not been adopted as the official doctrine by the courts.
3. Fundamental Rights Incorporation: This approach emphasizes the protection of "fundamental rights" and argues that only those provisions that are considered essential to the concept of ordered liberty should be incorporated. This approach is based on the Supreme Court's interpretation of substantive due process, which protects certain fundamental rights from government interference.
As for determining which of these incorporation doctrines is true, it's important to note that the Supreme Court has not declared any one approach as the exclusive standard. Instead, the court has relied on a combination of the selective incorporation and fundamental rights incorporation approaches to determine which specific provisions from the Bill of Rights should be applied to the states. Thus, the incorporation doctrine is an ongoing and evolving aspect of constitutional law that continues to be shaped by the court's interpretation and decisions.