Definition
To incorporate has two principal legal meanings that operate in entirely separate areas of law:
1. Corporate formation. To create a corporation by completing the legal formalities required by state law — typically filing articles of incorporation with the relevant state authority — thereby conferring corporate status on the organizing persons or entities. The act of incorporating transforms an association of individuals into a legally distinct entity with its own rights, liabilities, and continuity.
2. Incorporation by reference. To adopt the contents of a separate document into the instrument being drafted, without setting those contents out in full, by expressly declaring that the external document is made part of the instrument. The legal effect is that the incorporated material is treated as if it were physically reproduced within the instrument itself.
3. Constitutional incorporation. In U.S. constitutional law, to apply a provision of the federal Bill of Rights to state governments through the Due Process Clause of the Fourteenth Amendment. This usage is largely a twentieth-century development and is discussed separately in the entry on Incorporation of the Bill of Rights Against the States.
Common Language
Modern common usage (Wiktionary): To include something as a part; to mix in as an ingredient; to blend; to form into a body; to combine different ingredients.
Historical common usage (Webster's 1913): Not consisting of matter; not having a material body; incorporeal. Also: not incorporated; not existing as a corporation.
Note: Webster's 1913 treats "incorporate" primarily as an adjective meaning incorporeal or non-corporate — essentially the opposite of the dominant modern legal verb sense. Researchers consulting nineteenth-century sources should be alert to this adjectival form, which can appear in older deeds, wills, and legal commentary without any reference to the corporate formation process.
Common Confusion
The three legal senses of "incorporate" are fully distinct and researchers should not allow one to bleed into another. Incorporation by reference is a drafting technique available in contracts, wills, regulations, and pleadings — it has nothing to do with corporate formation. Constitutional incorporation is a doctrine of federal constitutional law with its own body of case law, doctrine of selective incorporation, and ongoing litigation — it has no connection to either corporate filing procedures or drafting technique. The shared root can produce misleading search results in full-text corpus research.
Why It Matters in Research
Corporate formation searches. Historical sources frequently use the noun form "incorporation" and the past participle "incorporated" as a status descriptor (e.g., "an incorporated company") rather than as a description of the act of forming a corporation. Distinguishing between records of the act and records of the status is important when tracing corporate history in nineteenth- and early twentieth-century materials.
Incorporation by reference. This doctrine appears across multiple bodies of law — contract drafting, federal regulatory practice (where agency regulations may incorporate industry standards by reference), will drafting, and pleading rules. The legal standards for whether an incorporation by reference is effective vary by context: what suffices in a commercial contract may not suffice in a will or a consumer agreement. Researchers moving across practice areas should not carry assumptions from one body of law into another.
Constitutional incorporation. This sense of the word is almost entirely absent from sources predating the late nineteenth century and does not appear in full doctrinal form until the twentieth century. Researchers using older dictionaries or treatises will find no guidance here. The selective incorporation cases are a distinct body of constitutional litigation requiring its own research pathway; the term "incorporate" in this sense will not retrieve those cases in keyword searches without pairing it with "Fourteenth Amendment" or "Bill of Rights."
Regulatory and administrative sources. Federal administrative law uses "incorporation by reference" in a formal, codified sense governed by the Office of the Federal Register. Materials incorporated by reference into the Code of Federal Regulations have the same legal effect as if set out in full, but access issues arise because the incorporated standards are often privately published. This is a practical research trap that the historical dictionaries do not address.
Anderson's cross-reference. Anderson's Dictionary of Law directs the reader only to "CORPORATE," providing no independent definition. This is a research dead end for understanding the verb form and its multiple applications.
Historical Dictionary Support
Black's Law Dictionary (both editions) captures the two classical legal meanings — corporate formation and incorporation by reference — with substantial agreement. The second edition adds a citation to Railroad Co. v. Cupp as illustrative authority for the incorporation by reference sense, confirming that doctrine was well established in American courts by the early twentieth century. Neither edition addresses constitutional incorporation, which was not yet a fully developed doctrine at the time of those publications. Neither edition distinguishes between the procedural act of filing to form a corporation and the legal effect that follows from it — a distinction that modern corporate law scholarship treats as significant. Anderson's provides no substantive guidance, making it unhelpful for this term beyond directing researchers to related corporate concepts.
The historical sources collectively confirm that incorporation by reference was treated as a well-understood legal shorthand and not a doctrine requiring extended analysis. The modern elaboration of that doctrine — particularly its limits in consumer contracts and administrative law — is entirely post-historical-dictionary development.
Jurisdictional Note
Corporate formation requirements vary by state: the filing officer, required contents of articles of incorporation, effective date of corporate existence, and treatment of defective incorporation all differ across jurisdictions. Delaware, the dominant state for corporate formation, has its own statutory scheme that diverges in meaningful ways from the Model Business Corporation Act followed in many other states. Constitutional incorporation is exclusively federal doctrine.
Encyclopedia Cross-Reference
Corporate Formation — Incorporation Process and the Role of the State (The Law Mind Business Organizations & Corporate Law Encyclopedia)
Corporate Formation — Articles of Incorporation and Bylaws (The Law Mind Business Organizations & Corporate Law Encyclopedia)
Incorporation of the Bill of Rights Against the States (The Law Mind Constitutional Law Encyclopedia)