Exploring Selective Incorporation: Rights Applied to States Explained

Selective incorporation is a legal principle dictating the application of Bill of Rights protections to states. Though it may initially seem akin to filing business incorporation forms, selective incorporation is fundamentally a constitutional concept, shaping our rights at the state level.

To demystify the concept of selective incorporation, let’s delve into its historical backdrop, landmark court rulings, and the protections it affords.

What is selective incorporation?

Selective incorporation, a pivotal principle within constitutional law, ensures specific Bill of Rights provisions are enforced in states via the 14th Amendment’s equal protection clause. The “selective” aspect stems from the Supreme Court’s approach to integrating these rights on an individual case basis.

Why is selective incorporation pivotal?

This doctrine guarantees that the Bill of Rights’ provisions are upheld across all states. Known also as the first 10 amendments of the U.S. Constitution, these amendments safeguard several core rights, including:

• Freedom of religion
• Freedom of the press
• The right to a fair jury trial
• The right to bear arms
• Protection against unreasonable searches and seizures
• The right against self-incrimination

Selective incorporation vs. incorporation doctrine

While both terms broadly encompass the same idea, they have subtle distinctions:

• Selective incorporation is about the case-specific application of Bill of Rights portions to states.
• The incorporation doctrine is the overarching concept that states can’t infringe upon the Bill of Rights protections.

Although some legal theorists suggest selective incorporation falls under the incorporation doctrine, these terms are frequently used interchangeably.

Selective incorporation’s role

This comes into focus when state amendments or policies allegedly violate the Bill of Rights. Central to incorporating rights are two amendments:

• The Fifth Amendment, ensuring federal-level Bill of Rights protections.
• The 14th Amendment, safeguarding these rights at the state level.

A brief history of the Bill of Rights

1. 1787: The Constitutional Convention in Philadelphia drafts the new Constitution, which lacks specific protections for individual liberties, sparking debate.
2. 1787-1788: Ratification debates highlight concerns over the absence of a bill of rights. Anti-Federalists demand explicit protections for individual freedoms, while Federalists argue the Constitution inherently limits government powers.
3. 1789: James Madison, responding to promises made during the ratification debates and drawing from state declarations of rights, proposes 19 amendments to the Constitution in the House of Representatives.
4. September 1789: Congress approves 12 of Madison’s proposed amendments and sends them to the states for ratification.
5. December 15, 1791: Ten of these amendments are ratified by three-quarters of the states, becoming the Bill of Rights. The first two amendments concerning congressional representation and pay do not achieve ratification at this time.
6. The First Amendment guarantees freedoms concerning religion, expression, assembly, and the right to petition the government.
7. The Second Amendment protects the right to keep and bear arms.
8. The Third Amendment prohibits the quartering of soldiers in private homes without the owner’s consent.
9. The Fourth through Eighth Amendments provide protections against unreasonable searches and seizures, establish rights related to criminal prosecutions including the right to a fair trial, and protect against cruel and unusual punishment.
10. The Ninth Amendment states that the listing of individual rights in the Constitution does not mean that individuals do not hold other rights.
11. The Tenth Amendment asserts that powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states or the people.
12. Late 19th and 20th centuries: Through the process of selective incorporation, many rights guaranteed by the Bill of Rights are applied to the states via the Fourteenth Amendment, expanding the protection of individual rights against infringement by state governments.
13. 1992: The original second amendment proposed by Madison in 1789, relating to congressional pay, is finally ratified as the 27th Amendment to the Constitution.

The Bill of Rights’ evolution

Initially, states had the freedom to legislate in ways that breached freedoms like speech and press rights.

The 14th Amendment, ratified in 1868, prohibited states from depriving anyone of life, liberty, or property without due process. Yet, it wasn’t until 57 years later that the due process clause began to extend Bill of Rights guarantees to state laws.

Selective incorporation of Bill of Rights to states

The pivotal 1925 Gitlow v. New York case mandated states to uphold freedom of speech. Subsequent rulings have selectively applied various Bill of Rights protections to state governance, with the Supreme Court continuing to expand these rights to new legal contexts.

Selective vs. total incorporation debate

Historically, Supreme Court justices have debated over applying the 14th Amendment’s due process clause wholly or selectively. Some argued for total incorporation, necessitating states to acknowledge all Bill of Rights protections. Others favored a selective approach, suggesting that enforcing all protections would unduly burden states.

Notable Supreme Court decisions

The selective incorporation doctrine was solidified in the 1937 Palko v. Connecticut case, rejecting total incorporation. Noteworthy cases include:

• Gitlow v. New York (1925): Established state-level selective incorporation for free speech.
• Cantwell v. Connecticut (1940): Enhanced protections for religious speech.
• Brown v. The Board of Education (1954): Deemed school segregation a violation of the 14th Amendment’s Equal Protection Clause.
• Gideon v. Wainwright (1963): Affirmed the right to legal counsel in state courts.
• Tinker v. Des Moines Independent Community School District (1969): Established students’ rights under the First Amendment in schools.
• Roe v. Wade (1973): Defined a right to privacy.
• McDonald v. Chicago (2010): Extended the Second Amendment’s right to bear arms to all states.

Rights applied to states through incorporation

Over time, court decisions have applied most Bill of Rights protections to states, including:

• First Amendment freedoms of speech, press, and religion
• The Second Amendment’s right to bear arms
• The Fourth Amendment’s restrictions on search and seizure
• The Fifth Amendment’s right against self-incrimination
• The Sixth Amendment’s right to a speedy trial
• The Eighth Amendment’s protection against cruel punishment

Bill of Rights protections not yet applied to states

Certain Bill of Rights protections remain unincorporated at the state level, such as:

• The Third Amendment’s limitation on quartering soldiers
• The Seventh Amendment’s civil case jury trial right
• The Eighth Amendment’s protection against excessive fines

State power limitations

Critics argue selective incorporation unduly restricts state power. Yet, its scope is narrowly focused on preventing states from enacting laws that breach Bill of Rights protections.

Incorporating rights across all levels

Selective incorporation has gradually ensured most Bill of Rights protections against both state and federal government actions, leaving few exceptions. States are largely prevented from enacting laws that infringe upon these fundamental rights.

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