What Is Meant by Selective Incorporation?

By Laura Payet

What Is Meant by Selective Incorporation?

By Laura Payet

Despite how it may sound, selective incorporation has nothing to do with establishing a corporation or any other type of business. Rather, it refers to the legal doctrine the U. S. Supreme Court has employed over the years to extend the rights guaranteed by the U. S. Constitution to the states. Through selective incorporation, the Court has ruled that states may not pass laws restricting many of the important rights enshrined in the Constitution.

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Constitutional Rights and the 14th Amendment

The first 10 amendments to the Constitution, better known as the Bill of Rights, guarantee several rights that Americans have come to take almost for granted. These include rights to free speech and a free press, the right to keep and bear arms, the right to be free of unreasonable searches and seizures, and the right to trial by jury. But when originally drafted, these protections extended only to the federal government. That is, the Bill of Rights only prohibited the federal government from enacting laws that infringed upon those enumerated rights. States were free to limit these rights as they chose.

But, in 1868, during the Reconstruction period following the Civil War, the 14th Amendment was ratified, explicitly forbidding the states to deny any U. S. citizen the rights to due process of law and equal protection under the law. This amendment in part was a reaction to the harsh "black codes" passed by Southern state legislatures that restricted the rights of newly-freed black citizens in those states. It represented Congress's efforts to secure civil rights and liberties for black Americans for the first time.

Due Process and Selective Incorporation

Little by little, relying on the 14th Amendment's due process clause, the U.S. Supreme Court has extended many of the fundamental freedoms found in the Bill of Rights to the states, forbidding state legislatures from passing laws infringing upon those rights. Selective incorporation refers to the Supreme Court's choice to apply these rights to the states one at a time rather than all at once. The first time the Court relied on the due process clause to incorporate a federal constitutional right into state law was in the case of Gitlow v. New York (1925), ruling that the Constitution's free speech protections applied to state governments as well as the federal government.

After Gitlow, the Court has continued to extend Constitutional protections to state laws. For instance, in Gideon v. Wainwright (1963), the Court ruled that the 6th Amendment's right to counsel applies to the states. As recently as 2010, in McDonald v. Chicago, the Court struck down the city of Chicago's handgun ban, in place since 1982, holding that the ban impermissibly infringed on the 2nd Amendment right to keep and bear arms.

Articles of Incorporation

Distinct from selective incorporation, articles of incorporation is the name generally given to the document submitted to a state government office to establish a corporation. In most states, articles of incorporation are filed with the state business authority's office and they disclose basic facts about the corporation, such as its name and principal place of business, contact information, its purpose, and information about its stock. Each state has its own format for this document and each state charges a filing fee.

If you are ready to get your business off the ground and you think a corporation might be the right fit for you, preparing the articles of incorporation is your first step. An online service provider can support you throughout the process, so you can be ready to go in no time.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.

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