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.

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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.

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The Definition of Selective Incorporation
 

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