Selective Incorporation: Everything You Need to Know
It discusses how selective incorporation is a doctrine which allows the federal government of the USA to limit the legislative powers of states.3 min read
The incorporation definition government discusses how selective incorporation is a doctrine which allows the federal government of the United States of America to limit the legislative powers of states.
Definition of Selective Incorporation
Selective incorporation, also known as incorporation doctrine, is a constitutionally established doctrine which prevents states from passing laws that deprive American citizens of rights protected in the Bill of Rights. The concept of selective incorporation is not a law enacted by Congress, rather, it came to be as a result of a series of rulings and court cases decided at the United States Supreme Court.
What is Meant by Incorporation Doctrine?
At its core, the incorporation doctrine aims to protect the rights of American citizens by empowering the federal government to limit the legislative powers of the states. The doctrine serves as an enforcer for the Bill of Rights, i.e., it makes the provisions of the first ten amendments to the Constitution binding on the states.
Before the passing of the Fourteenth Amendment and the adoption of selective incorporation, the Bill of rights was binding only on the national government and cases decided at Federal courts. However, the Fourteenth Amendment contains a clause which made the Bill of Rights applicable to states and state courts in certain aspects of their laws.
What is the Origin of Selective Incorporation?
The origin of selective incorporation is as old as the Constitution itself. When the Constitution was still in the drafting stage, the founding fathers had many heated sessions over the rights of the federal government relative to the federating states. The Federalists, a now defunct political party, refused to sign the constitution unless the Bill of Rights made it clear that the federal government had no powers to limit certain rights of the American citizenry enshrined in the first 10 amendments of the Constitution. However, a lot of debate arose after the Constitution came into effect about the extent to which states can incorporate federal laws into their local legislation.
The Supreme Court adopted selective incorporation after the passage of the Fourteenth Amendment. Under the selective incorporation approach, the Supreme Court incorporates only certain aspects of specific amendments, rather than the whole amendment.
The Fourteenth Amendment became necessary due to an 1833 Supreme Court ruling in the court case Barron v. Baltimore in which the apex court ruled that the Bill of Rights binds only the federal government. The decision set in motion a series of activities that culminated in the passing of the Fourteenth Amendment to the Constitution by Congress in 1868.
The Fourteenth Amendment includes a clause that limits the ability of states to enact laws that deprive citizens of constitutionally protected rights. With the enactment of the Fourteenth Amendment, the Constitution limited the ability of states to pass laws that deny American citizens their life, liberty, and property without following laid down legal processes, or Due Process.
Over the years, the Supreme Court has adopted the incorporation doctrine on several aspects of state government activities and legislation to protect the rights of citizens as provided in the Bill of Rights.
Examples of Cases Where the Selective Incorporation and Fourteenth Amendment Were Used
In its 1925 ruling in Gitlow v. New York, the Supreme Court ruled that states and local governments cannot deprive citizens of freedom of speech. The Court also ruled in Brown v. the Board of Education (1954) that states could not use racial characteristics to deprive citizens of their rights to public education. Also, the Supreme Court ruled in 1963 in Gideon v. Wainwright that it is the responsibility of states to provide legal counsel to criminal defendants who could not afford to hire their lawyers.
What is Reverse Incorporation?
Reverse incorporation is the process whereby the Supreme Court applies state laws to federal cases. This means that the Court converts a state law into national legislation, a reverse of the incorporation doctrine which applies federal laws to states. However, the Supreme Court rarely uses this doctrine.
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