Selective Incorporation

A little known fact to anyone who hasn’t taken AP Gov in high school is that the Bill of Rights, and the entire U.S. Constitution, didn’t apply to the states. The founding generation was concerned with federal over-reach, there wasn’t that same level of concern for state governments. However, through a process called selective incorporation, the Supreme Court of the United States has applied the Constitution to the states on a case-by-case basis. This section is about how they do that.

What you need to learn

Skill to Practice: Explain how a required SCOTUS case relates to a foundational document or to other primary or secondary sources.

Selective Incorporation

-what is it?

-what are some examples of it?

-what’s the impact?

Federal Government vs. State Govs.
Role of the Civil War & 13th Amendment
Role of 14th Amendment 

Reynolds v. United States (1879)*
Mc. Donald v. Chicago (2010)
Amendments that are now selectively applied to states

Court Cases

Mc Donald v. Chicago, 2010


U.S. Constitution, 14th Amendment

Selective Incorporation: State and Federal Power Dynamics


Selective incorporation has played a pivotal role in defining the relationship between state governments and the Bill of Rights. Rooted in the aftermath of the Civil War, this doctrine centers on how and when the rights protected by the Constitution are applied to state governments. But why didn’t the Founders originally restrict states with the Bill of Rights? Let’s delve deeper.

Background: The Founders’ Perspective

The framing generation was chiefly preoccupied with the power dynamics of a new central authority – the federal government. Recalling their struggle with British imperial power, the Founders sought to ensure that this new centralized authority would not trample upon the rights of individuals. Their primary concern was not the states, which were viewed as closer to the people and, thus, less likely to infringe on their rights. Hence, the Bill of Rights was intended as a set of restrictions primarily against the federal government.

Role of the Civil War: More than a Battle over Slavery

The Civil War (1861-1865) remains the bloodiest conflict on American soil, and while slavery is the most remembered catalyst, the war also encompassed battles over states’ rights versus federal power. The Southern states, fearing a loss of their economic and social order, rebelled against what they perceived as overreaches of federal authority. The North fought, among other things, to preserve the Union and later, to end slavery.

Upon the Union’s victory, the federal government faced the monumental task of redefining the relationship between individual states and the newly affirmed federal authority, especially in the context of ensuring rights for the millions of newly freed Black citizens.

13th Amendment: The End of Slavery

Ratified in 1865, the 13th Amendment abolished slavery and involuntary servitude, except as punishment for a crime. This was the federal government’s initial stride in ensuring that individual rights, particularly those of former slaves, were protected across every state.

While directly addressing the issue of slavery, the 13th Amendment set a precedent: the Constitution could be amended to restrict not just federal actions but also those of the states, especially when individual rights were at stake.

14th Amendment: The Keystone of Individual Rights against States

The 14th Amendment, ratified in 1868, is one of the most litigated and significant parts of the Constitution. It was conceived to address the post-war challenges, including the infamous Black Codes which Southern states had begun enacting to limit the freedom of African Americans.

The amendment’s key provisions include:

  1. Citizenship Clause: It granted citizenship to “all persons born or naturalized in the United States,” which included former slaves.
  2. Privileges or Immunities Clause: This prevented states from denying its citizens the privileges or immunities of national citizenship.
  3. Due Process Clause: No state could “deprive any person of life, liberty, or property, without due process of law.” This clause would become the bedrock of selective incorporation.
  4. Equal Protection Clause: It required states to provide equal protection under the law to all people within their jurisdictions.

Of these, the Due Process Clause would be crucial for the doctrine of selective incorporation. Before this amendment, the Bill of Rights protected citizens’ rights only concerning the federal government. The 14th Amendment’s Due Process Clause started the complex judicial journey of determining which protections from the federal Bill of Rights also applied to the states.

The Emergence of Selective Incorporation

With the Due Process Clause of the 14th Amendment in place, the door was opened for the judiciary to explore the idea that some rights might be so fundamental that states should not be allowed to infringe upon them. Over time, the U.S. Supreme Court began to apply, on a case-by-case basis, specific rights enumerated in the Bill of Rights to the states, a process termed “selective incorporation.”

Thus, in the aftermath of the Civil War, a transformed Union not only grappled with healing its battle scars but also with redefining the very essence of individual rights in America. The 13th and 14th Amendments, borne from this tumultuous era, laid the constitutional foundation that would ensure the protection of individual liberties against potential overreaches by state governments.

Selective Incorporation Defined

Selective incorporation is the process by which certain rights in the federal Bill of Rights are deemed applicable to the states using the 14th Amendment’s Due Process Clause. Instead of applying the entirety of the Bill of Rights at once to state governments, the U.S. Supreme Court, over time, has chosen which federal rights also limit state actions.

Key Cases Demonstrating Selective Incorporation

  1. Gitlow v. New York (1925): A pivotal case where the Court declared that states must respect freedom of speech, laying groundwork for future First Amendment cases.
  2. Mapp v. Ohio (1961): The Court determined the Fourth Amendment’s protection against unreasonable searches and seizures applied to states, introducing the exclusionary rule at the state level.
  3. Gideon v. Wainwright (1963): Reinforced the Sixth Amendment’s right to counsel, declaring that states must provide attorneys to defendants in criminal cases who cannot afford them.

Impact and Amendments Incorporated

Through selective incorporation, a substantial portion of the Bill of Rights has been applied to the states. Some examples:

  • First Amendment: Protects freedoms like speech, religion, and assembly.
  • Fourth Amendment: Safeguards against unreasonable searches and seizures.
  • Fifth Amendment: Right to a grand jury in certain cases, protection against double jeopardy, and self-incrimination.
  • Sixth Amendment: Guarantees a speedy, public trial and legal counsel.
  • Eighth Amendment: Protection against excessive bail and cruel and unusual punishment.

It’s essential to note that not all rights have been incorporated. For instance, the Third Amendment’s protection against quartering troops has never been applied to the states via selective incorporation.

Selective incorporation has proven to be a defining doctrine in U.S. constitutional law, reshaping the balance of power between the federal and state governments. Rooted in the post-Civil War amendments, it continues to underscore the living nature of the Constitution, reflecting societal shifts and evolving perspectives on individual rights in relation to government powers.