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.

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.

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

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.

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