Incorporation in the United States

The extent to which the federal Bill of Rights acts as a limitation on state governments. Incorporation was originally defined in Barron v. Baltimore (7 Peters 243: 1833). Through Chief Justice John Marshall, the Supreme Court held that the Bill of Rights constrained only “the government created by the instrument,” the federal government, and not the “distinct governments,” the states. Barron was controlling until ratification of the Fourteenth Amendment in 1868. The Fourteenth Amendment reopened the question of incorporation because it clearly directed its proscriptions to the states. Several schools of thought have developed about how to resolve the matter.

The most sweeping recommendation was to apply all Bill of Rights provisions to the states through the Due Process Clause of the Fourteenth Amendment. This clause prohibits a state from denying liberty without due process. Those advocating total incorporation viewed the term “liberty” as an all-inclusive shorthand for each of the rights enumerated in the Bill of Rights. The approach has been vigorously advocated by the first Justice John Marshall Harlan and by Justice Hugo L. Black, but it is a view that has never been shared by a majority of the Supreme Court. A second opinion rejected any structural linkage of due process to the Bill of Rights and held simply that the Due Process Clause requires states to provide fundamental fairness. Due process is assessed under this standard by criteria of “immutable principles of justice,” or, as suggested by Justice Benjamin N. Car- dozo in Palko v. Connecticut (302 U.S. 319: 1937), elements implicit in the concept of ordered liberty. Application of such standards would occur on a case-by-case basis.

The third option is a hybrid of the first two and is known as selective incorporation. The selective approach resembles the fundamental fairness position in that it does not view as identical those rights contained in the Bill of Rights and those rights fundamental to fairness. Unlike the fundamental fairness approach, however, the selective view holds that rights expressly contained in the Bill of Rights, if adjudged fundamental, are incorporated through the Fourteenth Amendment and are applicable at the state level regardless of the circumstances of a particular case. If the self-incrimination provision of the Sixth Amendment were determined to be fundamental, for example, it would apply in full to any state case bringing whatever substantive standards it pre-ferred into federal courts. The selective approach created an “honor roll” of Bill of Rights provisions, some viewed as fundamental and wholly incorporated and others as less important and not worthy of incorporation. (1)

Analysis and Relevance

Incorporation focuses on the degree to which Bill of Rights guarantees apply to the states. The question assumed critically important dimensions soon after ratification of the Fourteenth Amendment. The matter remained unresolved for several decades. Early decisions such as Hurtado v. California (110 U.S. 516: 1884) found the Court refusing to extend federal protections to the states. The Supreme Court eventually settled on the selective incorporation approach, starting with its recognition of the Free Speech Clause of the First Amendment in Gitlow v. New York (268 U.S. 652: 1925). This ultimately allowed the Supreme Court, especially the Warren Court, to apply most of the safeguards to the states.

The Warren Court added many provisions to the list developed under the preceding fundamental fairness approach. The only Bill of Rights provisions that have not been incorporated are the grand jury requirement of the Fifth Amendment, the civil jury trial provision of the Seventh Amendment, and the Excessive Bail and Fine Clause of the Eighth Amendment. The incorporation doctrine is a central element in contemporary American rights policy. The process of incorporation made it possible to extend federal rights through to the states. This was especially important where state law did not provide such protection. Equally important, the doctrine made the U.S. Supreme Court the source of authoritative rulings on rights policy. This had the effect of creating a uniform rights policy across the states, thus providing in effect for the “nationalization” of individual rights. (2)

Business Incorporation

Company or Business incorporation is the process of legally registering a business as a corporation with the relevant government agency. For information about the registration process – and for information on searching registration records – see “Secretary of State Records” in this legal Encyclopedia.

You can look up the state in which a U.S. business is incorporated in the D&B Million Dollar Directory, or you can use the sources discussed in the Registration Records section of the Secretary of State Records entry. You can also use the sources in the Registration Records section to find out the other states in which a corporation is (or isn’t) licensed to do business.

For information on how to get incorporation forms and how to file them, see the entry for Forms.

Foreign Incorporation: If you want to incorporate a business in a foreign country, your best bet is to hire CT Corp, CSC or another company that specializes in foreign incorporation.

For information on how to incorporate a business in a foreign country, a general summary of the law is published in the “Business Organizations” sections of each country’s Martindale-Hubbell International Law Digest. More information is available in some of the Guides referenced in the separate entry for Doing Business in Foreign Countries.

Incorporation in the Context of Courts General Jurisdiction

General Jurisdiction Based on Incorporation or Registration to do Business in International Civil Litigation

Analysis of the General Jurisdiction Based on Incorporation or Registration to do Business in relation to the Jurisdiction of U.S. Courts over Parties to International Disputes.

Resources

Notes and References

1. Definition of Incorporation from the American Law Dictionary, 1991, California
2. Id.

See Also

• Bill of Rights (Judicial Effects and Policies)
• Federalism (Judicial Effects and Policies)
• Choice of Forum Provision
• Forum Selection
• Choice of Law
• Corporate Law
• Doing Business in Foreign Countries
• Foreign Laws
• Forms
• Secretary of State Records

Further Reading

• Information about Incorporation in the Gale Encyclopedia of American Law.