Definition
Incorporation has two distinct legal meanings that appear across different areas of law. Context almost always makes clear which meaning applies.
1. Corporate incorporation. The act or process by which individuals form a legal entity — a corporation — recognized by the state as having an existence separate from its members. The resulting entity possesses the capacity to hold property, enter contracts, sue and be sued, and continue in existence regardless of changes in membership. The corporation's rights and obligations are distinct from those of its incorporators, shareholders, and officers.
2. Incorporation by reference. A drafting and legal technique by which one document is made part of another without being physically reproduced in it. By referring to an external document and expressing an intent that it be treated as included, the incorporating document absorbs the content of the referenced one. Courts scrutinize whether the reference was sufficiently clear and whether the incorporated material was actually available to the parties or signatories at the relevant time.
A third usage — constitutional incorporation — applies specifically to the doctrine by which the Fourteenth Amendment is held to make provisions of the federal Bill of Rights enforceable against the states. This meaning does not appear in the historical dictionaries below but is now among the most litigated uses of the term in American constitutional law.
Common Language
Modern common usage (Wiktionary): The act of incorporating, or the state of being incorporated; the union of different ingredients in one mass; mixture, combination, synthesis; the act of creating a corporation; a body incorporated.
Historical common usage (Webster's 1913): The act of incorporating or the state of being incorporated; the union of different ingredients in one mass; the union of something with a body already existing; the act of creating a corporation; a body incorporated.
The common meanings track the legal meanings closely in outline, but they obscure two important distinctions. First, ordinary usage treats incorporation as a single concept; legal usage requires a researcher to identify which of at least three distinct doctrines is at issue. Second, the constitutional meaning — incorporation of the Bill of Rights — has no counterpart in common English usage and will not be found by approaching the term through general dictionary sources.
Recognized Forms
/SUBTYPES
Corporate incorporation: The formal process of creating a corporation, governed by state statute. Typically accomplished by filing articles of incorporation with the designated state authority. Produces a domestic corporation in the state of filing; other states may recognize it as a foreign corporation.
Incorporation by reference: Used in contracts, wills, statutes, regulations, and pleadings. Validity depends on the clarity of the reference and, in some contexts, on whether the incorporated material was attached, available, or known to the affected party.
Constitutional incorporation (Bill of Rights incorporation): The doctrine applying individual provisions of the federal Bill of Rights to the states through the Due Process Clause of the Fourteenth Amendment. Proceeds on either a selective basis (provision by provision) or, in theory, a total basis — though total incorporation has never commanded a Supreme Court majority.
Why It Matters in Research
Term collision is the central research hazard. A search for "incorporation" in the Law Mind corpus will return results across corporate law, contract drafting, statutory construction, constitutional law, and civil law property — often without distinguishing signals. Filter early by subject area.
For corporate research: The historical dictionaries define incorporation around the concept of perpetual succession, which reflects an older model in which corporations were rare, state-chartered bodies. Modern statutory frameworks — driven by general incorporation laws beginning in the nineteenth century — radically democratized the process. Entries in Burrill and Bouvier predate this shift and treat the corporation as an unusual legal creation rather than a routine business tool. Weight them accordingly.
For incorporation by reference: This doctrine generates significant litigation in consumer contracts, arbitration clauses, and federal regulatory materials. The historical dictionaries gesture at the concept but do not develop its requirements or limitations. Modern research requires moving past the dictionary sources quickly.
For constitutional incorporation: The historical dictionaries are silent on this meaning entirely. The doctrine postdates all five source dictionaries and developed through twentieth-century Supreme Court decisions. Researchers approaching constitutional questions through historical dictionary sources will find nothing useful and may incorrectly conclude the term is inapplicable. Go directly to the constitutional law encyclopedia entry.
The Bouvier entry adds one usage — the civil law meaning of incorporating one domain into another — that appears nowhere in the other sources and has limited relevance to modern American practice. It is worth noting for historical civil law research but should not be imported into common law analysis.
Historical Dictionary Support
All five sources agree on the core corporate meaning: incorporation is the act of creating a body with perpetual succession and separate legal existence. Burrill's entry is the most concise and structurally precise, grounding the concept in the Latin corpus and emphasizing the artificial body's continuity. Bouvier adds the civil law domain-union meaning, which the others omit. Black's (both editions) and Rapalje & Lawrence each include incorporation by reference as a second distinct meaning, making them the most complete historical sources on that doctrine. Burrill and Bouvier address only the corporate meaning.
No source anticipates the constitutional doctrine. Researchers should treat the historical dictionary record as covering roughly two-thirds of the term's modern legal range.
Jurisdictional Note
Corporate incorporation is exclusively state-law governed in the United States; the federal government does not charter ordinary business corporations. Significant variations exist in filing requirements, default governance rules, and liability protections across states, with Delaware, Nevada, and Wyoming attracting disproportionate incorporation activity due to favorable statutory and judicial environments.
Encyclopedia Cross-Reference
Corporate Formation — Incorporation Process and the Role of the State (Law Mind Business Organizations & Corporate Law Encyclopedia)
Corporate Formation — Articles of Incorporation and Bylaws (Law Mind Business Organizations & Corporate Law Encyclopedia)
Incorporation of the Bill of Rights Against the States (Law Mind Constitutional Law Encyclopedia)