Key Takeaways

  • Selective incorporation is a constitutional doctrine applying certain Bill of Rights protections to the states via the 14th Amendment.
  • The Supreme Court chooses, on a case-by-case basis, which rights are incorporated against state governments.
  • Not every right in the Bill of Rights is incorporated; some remain applicable only to the federal government.
  • Selective incorporation arose from historical debates about federal versus state power, and was clarified through landmark Supreme Court cases.
  • Understanding selective incorporation is essential for recognizing how constitutional rights are protected at both state and federal levels.

What is meant by selective incorporation? Selective incorporation is a doctrine describing the ability of the federal government to prevent states from enacting laws that violate some of the basic constitutional rights of American citizens. Although not a law, through multiple U.S. Supreme Court rulings over the years, this doctrine has been upheld as part of the 14th Amendment to the Constitution.

What Is the Bill of Rights?

When it was originally signed, the Constitution described the federal government but didn't guarantee any protection of citizens' rights. At the time, several states, concerned about a repeat of British rule, refused to accept the new Constitution until there were limitations put on the federal government's power. Thus, in 1791, Congress passed the first 10 amendments to the Constitution, collectively known as the Bill of Rights. These amendments described the basic freedoms given to American citizens.

Why Is Selective Incorporation Necessary?

When the Bill of Rights was first ratified, it only limited the powers of the federal government—not the states. This meant states could enact laws that potentially violated fundamental rights such as free speech, due process, or protection from unreasonable search and seizure. The concern over state authority prompted the eventual adoption of the 14th Amendment, which included the Due Process Clause. Selective incorporation is the legal process that uses the 14th Amendment to ensure that fundamental rights are consistently protected from infringement by state governments, not just the federal government.

The History of Selective Incorporation

The idea of selective incorporation dates to when the Constitution was being drafted, with the founding fathers heatedly debating the power of state governments versus the power of the federal government. In the end, the Constitution was signed and enacted without any definitive conclusion on the issue.

In the 1833 case of Barron v. Baltimore, the Supreme Court ruled that the Bill of Rights applied only to the federal government, meaning that states were able to pass their own laws violating the Bill of Rights without any intervention by the federal government.

It wasn't until 1868 that Congress passed the 14th Amendment, forbidding states from denying anyone the freedom to life, liberty, and property without due process, thus reversing the decision of Barron v. Baltimore.

Beginning in the 1920s, the Supreme Court ruled on many cases about the protection of the Bill of Rights within state laws. Selective incorporation is based on this approach to choosing which clauses of the Bill of Rights apply to state governments.

As the Supreme Court continued to rule on cases challenging state governments' ability to violate the Bill of Rights, justices began to debate the application of the 14th Amendment. Some felt that the amendment applied to the all amendments in the Bill of Rights, prohibiting states from the same violations as the federal government, while others felt that only portions of those basic rights should be incorporated.

In the 1937 case of Palko v. Connecticut, the Court rejected total incorporation and adopted the doctrine of selective incorporation as well as the guidelines for applying it.

How Does Selective Incorporation Work?

Selective incorporation operates through Supreme Court interpretation rather than a single legislative act. The Court reviews cases where state laws are alleged to violate constitutional rights and determines, through judicial precedent, whether a specific right is so fundamental that it must be applied to the states. This piecemeal process means only certain rights are incorporated, and it continues to evolve as new cases are decided.

The Court typically applies a two-part test:

  1. Is the right "fundamental to the American scheme of justice"?
  2. Is it deeply rooted in the nation's history and traditions?

If the answer is yes, the right is incorporated against the states via the 14th Amendment.

Rights Applied to States Through Selective Incorporation

Not all protections guaranteed in the Bill of Rights have been applied to states. Among those that do apply to states are:

  • First Amendment: Freedom of religion, speech, press, and assembly
  • Second Amendment: The right to keep and bear arms
  • Fourth Amendment: Freedom from unreasonable search and seizure
  • Fifth Amendment: The right to not incriminate oneself, double jeopardy, and due process
  • Sixth Amendment: The right to a fast and public trial
  • Eighth Amendment: Freedom from cruel and unusual punishment

Some protections that have not been applied to states include:

  • Sixth Amendment: Right of accused persons to be tried by a jury
  • Seventh Amendment: Guarantees a jury trial in civil cases involving more than $20
  • Eighth Amendment: Protection against excessive bail and fines

Examples of Rights Incorporated Through Selective Incorporation

The following examples show how selective incorporation has protected citizens from state laws that might otherwise violate constitutional freedoms:

  • First Amendment (freedom of speech): Gitlow v. New York—the Court held that states could not restrict free speech rights protected by the First Amendment.
  • Fourth Amendment (search and seizure): Mapp v. Ohio—evidence obtained through illegal searches cannot be used in state prosecutions.
  • Sixth Amendment (right to counsel): Gideon v. Wainwright—states must provide legal counsel to those who cannot afford it.
  • Eighth Amendment (cruel and unusual punishment): Robinson v. California—states may not impose cruel punishments.

Rights Not Yet Incorporated

Not every right in the Bill of Rights applies to the states. Some notable exceptions include:

  • Third Amendment: Protection against quartering of soldiers in private homes has not been incorporated.
  • Fifth Amendment: Right to a grand jury indictment in criminal cases.
  • Seventh Amendment: Right to a jury trial in civil cases.
  • Eighth Amendment: Protection against excessive fines and bail (the excessive fines clause is still debated in the courts).

Because the Supreme Court uses selective incorporation case by case, these and a few other rights are not yet enforceable against states.

Supreme Court Cases

As a result of selective incorporation, American citizens have the power to challenge any state actions that they feel violates their protections guaranteed by the Bill of Rights. Some examples of Supreme Court cases where the rulings upheld the 14th Amendment as well as selective incorporation include:

  • Gitlow v. New York (1925), this was the first time that the Supreme Court ruled that states must protect freedom of speech.
  • Cantwell v. Connecticut (1940), the Court ruled that a state statute could not put restrictions on religious speech.
  • Brown v. the Board of Education (1954), the Court ruled against a state's ability to use racial discrimination in public education.
  • Gideon v. Wainwright (1963), the Supreme Court ruled that states must provide an attorney for criminal defendants who cannot afford to hire their own attorney.

The Impact of Selective Incorporation on American Law

Selective incorporation has fundamentally shaped the relationship between citizens, states, and the federal government. By ensuring that certain fundamental rights cannot be infringed by state governments, the doctrine promotes consistency and uniformity in how essential rights are protected throughout the country. This doctrine also means that as the Supreme Court interprets the Bill of Rights and the 14th Amendment, new areas of law may become incorporated in the future.

Selective incorporation continues to be a dynamic area of constitutional law, with ongoing legal debates and Supreme Court rulings shaping its scope and impact.

Frequently Asked Questions

1. What is selective incorporation in simple terms?

Selective incorporation is a constitutional doctrine where certain rights from the Bill of Rights are applied to the states through the 14th Amendment’s Due Process Clause.

2. Why aren’t all Bill of Rights protections incorporated?

The Supreme Court uses a case-by-case process, only incorporating rights deemed fundamental to the American justice system. Some rights haven’t yet met this standard.

3. Which amendments have not been fully incorporated?

The Third Amendment, some aspects of the Fifth, Seventh, and Eighth Amendments have not been fully incorporated against the states.

4. How does selective incorporation affect me?

It means that most—but not all—constitutional rights must be respected by your state government, not just the federal government, giving you broader protection.

5. What is the difference between total incorporation and selective incorporation?

Total incorporation would apply all Bill of Rights protections to the states automatically, while selective incorporation applies only those rights the Supreme Court finds fundamental, on a case-by-case basis.

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