There are several methods of incorporation, this process of applying the rights that are
contained in the Bill of Rights and that apply to the federal government by their
terms - ways of applying those rights to the state governments, okay? And so basically,
the three theories of incorporation are: fundamental fairness, total incorporation
(and total incorporation plus), and selective incorporation (and selective incorporation plus),
all right? So fundamental fairness says that out of the first ten amendments, the Bill of Rights,
all of those rights that are fundamental to the concept of ordered liberty apply to the states.
So, and over time the court determines what fits that description; what's fundamental to the
concept of ordered liberty. I think probably an easy one is the quartering of soldiers,
probably just because it never happens, has not been considered to be fundamental to
the concept of ordered liberty and so that one hasn't been incorporated to the states,
to force the states to grant that right, okay? On the other hand, as we're going to see shortly,
most of the Bill of Rights have been determined to be fundamental, but that's one way of doing it,
okay? Fundamental fairness. A second way is total incorporation. Total incorporation says the whole
Bill of Rights, all ten of them, if they're important enough to put in the Bill of Rights,
they're important enough for the states to have to follow them. So total incorporation, that legal
philosophy says everything, everything that's in the ten Bill of Rights applies to the states.
Remember I said there was a total incorporation plus? Total incorporation plus goes even further!
It says everything that's in the Bill of Rights plus even other things that aren't in the Bill
of Rights that the court might come up with like maybe, universal health care or free education, or
who knows what, ok? Have to apply to the States. It's another philosophy that some judges hold,
okay? And finally, we have selective incorporation and selective incorporation plus; so selective
incorporation says we're going to pick and choose (we being the justices on the US Supreme Court)
which particular rights in the Bill of Rights we think should apply to the states and those
ones apply. Sounds kind of like fundamental fairness except there doesn't have to be a
finding that they're fundamental to the concept of ordered liberty; they're just
the ones we picked. You know, because we thought they're important, right? And then, similarly to
what I just said about total incorporation plus, there's selective incorporation plus,
okay? So selective incorporation plus says the ones that we pick apply to the states, plus some
other ones that we come up with; again it could be something like free health care or free education
or what have you, okay? So those are the three theories of incorporation, to incorporate the Bill
of Rights the first ten amendments that normally would only apply to the federal government,
to apply them to state governments, to force state governments to abide by federal constitutional
requirements, all right? And that process, which has been extensive, and basically has led to most
of the Bill of Rights applying to all the states too has led to what's called a nationalization or
a constitutionalization of laws across the United States. And what that means is the laws all tend
to become the same. Without this process, let's say Missouri says that you can have a you can have
firearm for example, or let's just say Missouri says you can have any kind of firearm you want,
okay? But maybe California says you can't have firearms or you can only have one particular
type of firearm that's useless or something like that, okay? It's at the other end of
the spectrum. Without this incorporation and this nationalization of laws; that's fine,
different states all have disparate laws, they're all over the boards, okay? But once
you incorporate, you say, "no, this applies to everyone," the laws tend to become more the same
and that's why they call it nationalization or constitutionalization of state laws.