What is Meant by Selective Incorporation?

By Lisa Magloff

Selective incorporation is a constitutional doctrine that ensures states cannot enact laws that take away the constitutional rights of American citizens that are enshrined in the Bill of Rights. Selective incorporation is not a law, but has been established over time through court cases and rulings by the United States Supreme Court. At its heart, selective incorporation is about the ability of the federal government to limit the states' lawmaking powers.

Origins

Selective incorporation has its origins in the very beginnings of the United States. During the drafting of the Constitution, there was heated debate over the relationship between the rights of state governments and the federal government. One early political party, the Federalists, insisted that the Bill of Rights guarantee that the federal government could not limit certain rights before they would sign the constitution. Yet after the constitution was signed and came into force, questions remained over the degree to which federal laws were incorporated into state laws.

Roll of the 14th Amendment

One early Supreme Court case, Barron v. Baltimore, in 1833, ruled that the Bill of Rights only applies to the national government. As such, to prevent states from limiting the rights granted in the constitution, a new law was needed. In 1868, Congress passed the 14th amendment to the constitution. This amendment contains a clause that prevents states from making any law limiting the rights granted to citizens in the constitution. The amendment was designed to protect the rights of former slaves to life, liberty and property, but it also overruled the decision in Barron and incorporated the rights granted in the constitution into state law.

Ready to incorporate your business? Get Started Now

Selective Incorporation

In 1873, the Supreme Court gave its first ruling on the 14th Amendment, and selective incorporation, in the Slaughterhouse cases. The cases stemmed from a 1869 Louisiana law granting a monopoly on the slaughter of livestock to one New Orleans slaughterhouse, and banning any other slaughterhouses from operating in New Orleans. By a 5 to 4 vote, the Court narrowly interpreted the Privileges and Immunities Clause, thought to be the most likely basis for enforcing individual rights against states. According to the ruling, Louisiana could grant a business monopoly, as this was not expressly forbidden in the Constitution.

Expansion of Selective Incorporation

From the 1920s onward, the Supreme Court broadened its stance on the doctrine of selective incorporation and has gradually extended the protection granted in the Bill of Rights to many aspects of state government. For example, in Gitlow v. New York (1925), the Court ruled state and local governments could not limit the right to freedom of speech. Additionally, in Gideon v. Wainwright (1963), the Court ruled that states must provide legal counsel to indigent criminal defendants, while Brown v. the Board of Education (1954) struck down a state's ability to discriminate in public education on the basis of race. The result of these and other Supreme Court rulings over time has limited the right of states to make laws that limit the rights and privileges granted to citizens in the Constitution.

Ready to incorporate your business? Get Started Now
The Definition of Selective Incorporation

References

Related articles

Grandparents' Rights in Divorce

Divorce is an anguishing process when you have children. Although sometimes overlooked, divorce can also be an anguishing process for grandparents, especially if the divorce restricts access to your son or daughter's children. In 2000, the Supreme Court wrestled with this issue and ratified the basic right of parents to make decisions about the upbringing of their children -- including who can see or visit their children. However, there are exceptions to this rule, and state legislatures and courts have taken widely differing positions regarding the rights of grandparents to successfully sue for visitation rights. This is especially true when parents are divorced or separated.

What Is the Lifespan of a Patent?

You’ve created something useful, and, hopefully, profitable, and now you want to protect your invention. An application to the United States Patent and Trademark Office will guard your right to make, distribute and sell your creation to the public. You can enforce a registered patent in a court of law and ask for damages for any infringement of your rights. However, patents don’t last forever, so you may need to plan accordingly.

What Is the Punishment for Violating a Patent?

Patent laws encourage creativity by allowing inventors to profit from their inventions. In essence, a patent awards inventors the exclusive right to market, sell or use their inventions. Patents are authorized in Article One, Section 8 of the U.S. Constitution. Accordingly, the federal government issues patent laws and sets forth a number of remedies that serve as punishment for those who violate patent rights.

LLCs, Corporations, Patents, Attorney Help

Related articles

Copyright Law on Streaming PPV Events

Copyright law in the United States continues to evolve as technology changes and new ways to copy and distribute ...

What Is the Origin of Divorce?

Approximately three out of every 1,000 Americans went through a divorce in 2009, according to the Centers for Disease ...

Model Business Corporations Act

The Model Business Corporations Act, first created by the American Bar Association, is a body of statutory law that was ...

About Copyright Laws for Movies

A copyright provides a legal monopoly on an original work of authorship, allowing the copyright holder to sue anyone ...

Browse by category
Ready to Begin? GET STARTED