Selective incorporation is a legal doctrine protecting your constitutional rights in any state you live in. Learn more about what that means and which rights are protected
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by LegalZoom staff
Updated on: July 30, 2024 · 5 min read
Selective incorporation is the legal principle of how Bill of Rights protections apply to states. On the surface, selective incorporation may sound like a way of filing legal incorporation forms to create a new business, but the incorporation doctrine isn't a business concept. It's a legal concept that shapes constitutional rights.
To help you understand the selective incorporation definition, we'll explain its history, famous court cases, and protections.
Selective incorporation is a constitutional law principle that refers to the way selected provisions of the Bill of Rights apply to each state through the equal protection clause of the 14th Amendment. The “selective" part comes from the fact that the U.S. Supreme Court incorporates these rights on a case-by-case basis.
Selective incorporation ensures that Bill of Rights provisions apply in every state. The Bill of Rights is another name for the first 10 amendments to the U.S. Constitution.
These amendments establish many fundamental rights, including:
Both selective incorporation and the incorporation doctrine refer to the same general concept. That said, their usage can slightly distinguish them:
Some legal experts might argue selective incorporation is a type of incorporation doctrine. However, you will often hear people use these terms interchangeably.
Selective incorporation comes up when states pass amendments or policies that are alleged to infringe on Bill of Rights protections. Two amendments play a key role in incorporating rights:
The original draft of the Constitution detailed the powers of the new American government, but it did not guarantee that the government would not infringe on citizens' rights. Some states would only ratify the Constitution if it also restricted the federal government's power.
As a result, the federal government adopted the Bill of Rights in 1791. Because the Bill of Rights restricted federal powers, it initially only applied to the federal government. In 1833, the Supreme Court specifically held that Bill of Rights protections did not apply to state governments.
For the next century, states could—and did—pass laws that violated protections such as freedom of speech and freedom of the press.
The 14th Amendment, ratified in 1868, forbade states from denying anyone life, liberty, or property without due process of law. But it was another 57 years before the 14th Amendment's due process clause extended guarantees in the Bill of Rights to the states.
In the 1925 case Gitlow v. New York, the Supreme Court held that states must protect freedom of speech. Since then, a series of court decisions have applied some, but not all, of the individual protections in the Bill of Rights to state governments.
To this day, Supreme Court cases may expand the Bill of Rights' purview to new states and legal contexts.
Supreme Court justices have historically had different opinions about the incorporation doctrine.
Ultimately, the Supreme Court adopted the selective incorporation doctrine in the 1937 case of Palko v. Connecticut. That decision rejected total incorporation and established a selective incorporation definition and guidelines for applying it.
Over the years, a series of court decisions have applied most, but not all, of the Bill of Rights protections to the states. Among them are:
A few of the protections in the Bill of Rights aren't incorporated into states, including:
Opponents of selective incorporation argue it places a blanket limit on state power. However, the incorporation doctrine has a more narrow focus than that. Specifically, it limits states' regulation of civil rights and liberties. The incorporation doctrine only comes up when state laws are found to violate Bill of Rights protections.
Over the past century, the doctrine of selective incorporation has extended most of the Bill of Rights to protect citizens against state and federal government actions. So with only a few exceptions, states cannot enact laws violating the Bill of Rights' fundamental protections.
To learn more about U.S. law and government authority, check out our list of attorney services. Our experts can answer questions on everything from the definition of selective incorporation to litigation, estate planning, and more.
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