What is the basis for selective incorporation?

What is Selective Incorporation?

Selective incorporation means that certain rights in the Bill of Rights  – – but not all rights in the Bill of Rights – – apply to the states. States may not enact laws that would violate those rights in the Bill of Rights that apply to them. When a right in the Bill of Rights applies to the states, we say that the right is incorporated against the state.

Before reading more, the short video below introducing incorporation might be helpful:

As discussed in the video above, the first ten Amendments to the US Constitution are known as the Bill of Rights and, among other things, they protect certain freedoms. However, the Bill of Rights only refers to the federal government. One issue that arises in US courts is whether states may enact laws that would deprive people of rights guaranteed in the Bill of Rights.

The 14th Amendment Incorporates Many Rights in the Bill of Rights Against the States

The Supreme Court of the United States has held that the 14th Amendment to the United States Constitution incorporates many of the rights in the Bill of Rights against the States. That is, because the 14th Amendment’s Due Process Clause prohibits states from depriving people of life, liberty, or property without due process of law, many of the freedoms guaranteed in the Bill of Rights applies to the states.

For example, a person’s freedom of speech and freedom of religion, guaranteed in the First Amendment, applies to the states. As a result, if a state were to try and pass a law that deprives its citizens of the freedom of speech or the freedom of religion, that law would be unconstitutional. A court would say that the law violates the First Amendment to the United States Constitution as incorporated against the states by the 14th Amendment.

But not all rights…

Not all the rights in the Bill of Rights apply to the states. For example, the Supreme Court has yet to hold that the Eighth Amendment’s prohibition against excessive bail and fines applies to the states. Because not all of the rights in the Bill of Rights have been incorporated against the states, courts have described incorporation as ‘selective incorporation’. Only specific rights in the Bill of Rights, as identified by the Supreme Court, are incorporated against the states.

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Prior to the twentieth century, the Bill of Rights was interpreted as applying only to the federal government and not the state governments, due in part to the Supreme Court ruling in Barron v. Baltimore in 1833. This case was brought by John Barron, a wharf owner in Baltimore, whose business began to fail when city expansion resulted in the accumulation of sand in the harbor, eliminating the deep waters that had made Barron's business profitable.

He claimed that under the Fifth Amendment, he was being deprived of his property—a deep-water wharf—by the city. The Supreme Court unanimously ruled that they did not have jurisdiction to hear the case because the Fifth Amendment was applicable only to the federal government and not to state governments. Chief Justice John Marshall's interpretation of the Fifth Amendment was broadened to include the entire Bill of Rights.

This interpretation allowed the states to engage in some activities that are unheard of by today's standards. It was not unusual for a state to enact laws establishing state churches, and it was perfectly legal for states to deny public office to people of certain religious groups. These actions by states were not contradictory to the Constitution because the Supreme Court's ruling in Barron determined that the federal Bill of Rights did not apply on a state level.

This idea that the Bill of Rights applied only to the national government began to change in 1868, when the Fourteenth Amendment was adopted. This Amendment establishes that no state can enact laws that contradict certain rights of its citizens or persons within the jurisdiction of the United States. The Fourteenth Amendment laid the foundation for the establishment of the doctrine of selective incorporation. Under selective incorporation, the Supreme Court could examine citizens' rights on a case-by-case basis and employ the protections afforded by the Bill of Rights as needed.

The Fourteenth Amendment received its first test during the Slaughterhouse Case of 1873. A group of Louisiana businessmen argued before the Supreme Court that the state legislature had granted a monopoly to one New Orleans slaughterhouse, which violated the businessmen's rights as United States citizens and denied "equal protection of the laws." Through the course of settling the matter, the Supreme Court ruled that the Fourteenth Amendment was not designed to protect a United States citizen from the legislative power of his own state. The states quickly applied this interpretation to the legal status of women and blacks to prevent them from receiving the same privileges and protections as white men. Later, the same argument would be applied to discriminate against other races and minority groups.

This interpretation persisted until 1925, when Gitlow v. New York came before the Supreme Court. Benjamin Gitlow was convicted under New York's criminal anarchy law for writings in a pamphlet known as the "Left Wing Manifesto." Gitlow appealed his conviction to the Supreme Court, and although the Court upheld Gitlow's punishment, it reversed its earlier position that Bill of Rights protection applied only to the federal government. The Supreme Court ruled that First Amendment freedoms of speech and of the press should be applied to the states.

The Supreme Court's ruling in Gitlow v. New York had far-reaching consequences. The ruling in the Gitlow case was the first unambiguous statement by the Court that the rights in the Constitution are incorporated to the states, establishing selective incorporation. This ruling laid the foundation for future decisions that would confirm that the states could not deny freedom of speech rights to students protesting the Vietnam War.

The due process clause is the section of the Constitution that specifically addresses restricting states' rights. It declares that "No state shall…deprive any person of life, liberty or property, without due process of law." The doctrine has been interpreted to give citizens both procedural due process and substantive due process. Procedural due process governs the rights that dictate how a government can legally go about taking away a person's freedom, property, or life, if the law otherwise allows them to do so. For example, procedural due process ensures that citizens have the right to a jury trial and the freedom from police searching their homes without a warrant. Substantive due process is the power and rights by the citizens to have or do certain things, such as freedom of speech or religion. Through the due process clause, the Bill of Rights could be selectively applied to the states.

Even today, the Bill of Rights has not been incorporated in its entirety. The Second and Third Amendments, dealing with the bearing of arms and quartering of soldiers in homes without the consent of the homeowner, have not been incorporated on a national basis. This is also true for the Seventh Amendment's right to a jury trial in civil cases and the Eighth Amendment's regulation of excessive fines or bail.

This does not mean that the Supreme Court opposes these Amendments, but only that it has not wholly incorporated these Amendments based on the cases before it. Interpretation of the Constitution continues today as new laws and new challenges to the law create the need for review and interpretation. The Supreme Court takes on the weighty responsibility of deciphering the intent of our forefathers and applying their intent to current matters.

Copyright 2006 The Regents of the University of California and Monterey Institute for Technology and Education

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