what does incorporation theory means?

Answer 1

The Issue: Does the Fourteenth Amendment "Incorporate" the Protections of the Bill of Rights and Made Them Enforceable Against the States?
The debate over whether the Fourteenth Amendment makes applicable against the states all of the protections of the Bill of Rights is one of the most important and longest-lasting debates involving interpretation of the
U. S. Constitution. The Supreme Court's first interpretation of the scope of the Fourteenth Amendment, adopted in 1868, was rendered in The Slaughterhouse Cases just five years later. By a 5 to 4 vote the Court in that case narrowly interpreted the Privileges and Immunities Clause, thought to be the most likely basis for enforcing individual rights against states. In subsequent cases, attention focused on the Due Process Clause. Beginning in the early twentieth century the Court began to selectively incorporate some of the specific provisions of the Bill of Rights while rejecting the incorporation of others. The Court's test for choosing which provisions--along with all the accompanying baggage of decisions interpreting the federal rights--were incorporated changed over time. The "modern view," as reflected in cases such as Duncan vs Louisiana (1968) is that provisions of the Bill of Rights "fundamental to the American scheme of justice" (such as the right to trial by jury in a serious criminal case) were made applicable to the states by the Due Process Clause of the Fourteenth Amendment whereas other provisions (such as the right to a jury trial in a civil case involving more than $20) were not made applicable.

Note that there are several possible positions that could be taken with respect to the incorporation debate. First, one could argue that the Fourteenth Amendment (either through the P & I Clause or the Due Process Clause) made the specific provisions of the Bill of Rights enforceable against the states and no more. This was the view argued for by Justice Black. Second, one could argue that the provisions of the Bill of Rights are essentially irrelevant to interpretation of the Fourteenth Amendment, and that violations of the Due Process Clause are to be determined by a natural-law-like tests such as "Does the state's action shock the conscience?" or "Is the state's action inconsistent with our concept of ordered liberty"? This is the "No Incorporation" Theory advanced by Justice Frankfurter, among others. Third, one could take a position such as Justice White did in Duncan that the Fourteenth Amendment incorporates certain fundamental provisions, but not other non-fundamental provisions. This view is often called the "Selective Incorporation" Theory. Finally, one could adopt either a "Selective Incorporation Plus" view or a "Total Incorporation Plus" (see Justice Murphy's view in Adamson, for example) view. These views hold that in addition to incorporating some or all of the provisions of the Bill of Rights, the Fourteenth Amendment also prohibits certain other fundamental rights from being abridged by the states.