What is Selective Incorporation?
How do you legally define it?
What are the essential elements you should know!
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What Is Selective Incorporation
Selective incorporation is a U.S. constitutional doctrine designed to ensure that individual states do not create laws infringing on the American people’s constitutional rights.
Over the years and based on a succession of rulings, the Supreme Court has established the doctrine of selective incorporation to ensure that the protections offered by the US Constitution apply to all levels of government and not just the federal government.
The 14th Amendment provides for the legal basis of “selective incorporation” where the first ten amendments of the United States Constitution (known as the Bill of Rights) apply to the US states.
Under the Fourteenth Amendment, the US Constitution states that all persons born or naturalized in the United States are citizens of the country and the State where they reside.
As a result, each state is prohibited from creating or adopting laws that may remove, diminish, or abridge the privileges and immunities of the citizens of the United States.
Every US citizen is entitled to:
- Protection of their life
- Protection of their liberties
- Protection of their property
- Benefit from due process
- Be given equal rights under the law
Prior to the Fourteenth Amendment, the Bill of Rights applied strictly to the Federal Government and federal matters.
Each state had the choice (no obligation) to follow the principles outlined in the Bill of Rights.
However, with the 14th Amendment, the Supreme Court established the “selective incorporation” doctrine whereby the fundamental rights and obligations outlined in the constitution are made applicable to the states.
Definition
How do you define selective incorporation?
The Legal Information Institute of Cornell Law School defines the selective incorporation doctrine as follows:
The incorporation doctrine is a constitutional doctrine through which the first ten amendments of the United States Constitution (known as the Bill of Rights) are made applicable to the states through the Due Process Clause of the Fourteenth Amendment.
In essence, selective incorporation applies to substantive laws and procedural laws.
How It Works
How does selective incorporation work?
The selective incorporation doctrine is essentially a limit over state powers.
Bill of Rights
Originally, the Bill of Rights applied strictly to the federal government.
As such, the Bill of Rights acted as a “restriction” over the federal powers.
The US states did not have any obligation to follow or apply the Bill of Rights as there were no legal mechanisms compelling them to do so.
However, further to US Supreme Court rulings over time, many of the Bill of Rights’ protections (first ten amendments to the US Constitution) were applied to the states.
The result was that the states forming the United States of America were required to observe the rights and freedoms outlined in the Bill of Rights.
As such, today, there is federal oversight over state legislation and laws to ensure that every US citizen benefits from the same constitutional rights and protections.
Any law or statute violating the constitution will be declared unconstitutional by the courts.
The courts will consider the facts of the case to see if someone’s right is implicit in the liberties outlined in the Constitution.
If the courts find that the rights are implicit in a person’s fundamental rights, then the obligation or right will apply to the state laws through the mechanics provided under the Fourteenth Amendment’s Due Process Clause.
Mapp vs Ohio (1961)
One historic selective incorporation case is that of Mapp vs Ohio going back to 1961.
In Mapp, the court ruled that the authorities and prosecution cannot illegally seize evidence to use against the accused.
As a result, in this particular case, the court ruled that evidence obtained from the unlawful search cannot be used as evidence against the accused.
What’s particular about the Mapp vs Ohio case is that the court incorporated the Fourth Amendment relating to protecting one’s privacy by leveraging the Due Process Clause (14th Amendment).
McDonald vs Chicago (2010)
Another historic case in the US involved McDonald vs Chicago in 2010.
In this case, the courts incorporated the Second Amendment’s right to keep and bear arms to the states.
In this case, the City of Chicago adopted a law prohibiting handguns in 1982.
In 2008, McDonald filed a lawsuit challenging the handgun ban because American citizens are given the right to keep and bear arms for self-defense purposes.
The courts ruled that the Second Amendment rights afforded to US citizens to keep and bear arms should be incorporated to the states.
On that basis, the court declared the 1982 City of Chicago law as unconstitutional.
Incorporated Amendments
What are the US Constitutional amendments incorporated further to the selective incorporation principles?
| Amendment | Incorporation |
| First Amendment | Full Incorporation: – Guarantee against the establishment of religion – Free Exercise of Religion – Freedom of Speech – Freedom of the Press – Right of Assembly and Petition – Freedom of expressive association |
| Second Amendment | Full Incorporation: – Right to keep and bear arms |
| Third Amendment | No Incorporation |
| Fourth Amendment | Full Incorporation: – Freedom from unreasonable search and seizure – Requirements in a warrant |
| Fifth Amendment | Partial Incorporation: – Right to indictment by a grand jury (not incorporated) – Double Jeopardy – Right against Self-Incrimination – Protection against taking property without due compensation |
| Sixth Amendment | Partial Incorporation: – Right to a Speedy Trial – Right to a Public Trial – Right to an Impartial Jury – Right to notice of accusations – Right to Confront Hostile Witnesses – Right to compulsory process to obtain witness testimony – Right to Confront Favorable Witnesses – Right to Counsel – Right to a jury selected from residents of the state and district where the crime occurred (not incorporated) |
| Seventh Amendment | No Incorporation |
| Eighth Amendment | Full Incorporation: – Protection against excessive bail – Protection against excessive fine – Protection against cruel and unusual punishments |
| Ninth Amendment | No Incorporation |
| Tenth Amendment | No Incorporation |
Reverse Incorporation
Reverse incorporation is a legal doctrine used by the Supreme Court using state laws to fill in the gaps in matters and issues the Supreme Court has not considered in the past.
The reverse incorporation doctrine is available for the Supreme Court to use as needed, but it has not been used as much.
Selective Incorporation vs Total Incorporation
Selective incorporation is when the US Supreme Court “selects” the rights and obligations that the US states must observe.
Total incorporation is a doctrine that states that the Bill of Rights, in totality, must be applied to the states so that every state is bound by the same obligations (or restrictions) as the federal government.
There are debates as to which doctrine is more suitable.
In 1937, the Supreme Court selected the “selective incorporation” doctrine over total incorporation in the Palko v. Connecticut case.
Selective Incorporation vs Articles of Incorporation
What is the difference between selective incorporation and articles of incorporation?
In reality, we are comparing apples to oranges.
Selective incorporation is a legal doctrine developed under the US Constitution where the Supreme Court applies the US Bill of Rights to the states.
The Bill of Rights refers to the first ten amendments of the US Constitution that include many rights and freedoms (freedom of religion, press, right to bear arms, right to counsel, etc).
On the other hand, articles of incorporation refer to documents a company founder or entrepreneur files with the state to form (or incorporate) a corporation.
The articles of incorporation will typically contain information about the corporate name, the company address, shares authorized, rights associated with the shares, registered agent information, and other relevant information about the corporation.
For a company to be legally formed, the articles of incorporation must comply with state laws.
Selective Incorporation Takeaways
What is the doctrine of selective incorporation?
What is the definition of selective incorporation?
Let’s look at a summary of our findings.
Selective Incorporation Doctrine
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