Incorporation deals with American Constitutional law.
Incorporation theory seems simple on its face. A simple definition is that "incorporation" refers to the absorption of state law under the specific protections of the U.S. Constitution, or more specifically, the Bill of Rights. But the implication here is complex: that the U.S. Constitution should override all state constitutions and state laws.
History
Most of the framers of the Constitution, and especially the Anti-Federalist dissidents, thought a Bill of Rights necessary to protect states from the encroachments of the proposed Federal Government. The text of the First Amendment, for example, states that "Congress shall make no law. . ." This strongly suggests that the purpose was to protect states from Congress, rather than have the Constitution be imposed upon them.
Features
Incorporation was first developed in response to the passage of the 14th Amendment. This Amendment (Section 1) specifically says, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Liberal judges have interpreted this to mean the states are now under the jurisdiction of the U.S. Constitution and must use it to define what "privileges or immunities" actually are.
Function
Incorporation theory is meant to create a unitary state over and above the federal arrangement of 50 sovereign states. If the 14th Amendment means what liberal courts claim it does, then the nature of "privileges and immunities" are defined by the Bill of Rights, hence meaning that states must frame law in accordance with the Federal Constitution, rather than their own law, tradition or circumstances. Conservatives have traditionally held that states are sovereign and may pass laws that are in accordance with their own constitutions, not specifically the Federal version.
Significance
More broadly, Incorporation theory holds that there are certain parts of the Bill of Rights that are fundamental to any form of the "rule of law" functioning at all. This was the decision of the landmark 1963 Supreme Court case Gideon v. Wainwright. The basic argument was that things such as security of property and freedom of speech were so "fundamental" to the rule of law, there is no way that this can fail to be incorporated without making the dissenting state into an arbitrary dictatorship. Therefore, the basic principles of free government (rather than the Constitution in itself) dictate the necessity of Incorporation. In other words, no constitution can be legitimate without such protections, and therefore, Incorporation is a fact, rather than a theory.
Effects
The famous "Necessary and Proper" clause (Section VIII) of the Constitution, liberals argue, acts as the mechanism for Incorporation. If the Federal Government can do whatever is "necessary and proper" to enforce and promulgate its own laws, then Incorporation is unavoidable. So, for example, if the Federal Government is going to enforce the 14th Amendment, it must be able to override certain forms of state legislation that impinge on the "privileges and immunities" that people have as citizens of the United States (rather than being citizens of a specific state).
Tags: rather than, Bill Rights, privileges immunities, 14th Amendment, Federal Government, Incorporation theory
