Definition of selective incorporation

Though it sounds like a way to set up a business, selective incorporation is actually a concept in constitutional law that extends some Bill of Rights protections to state governments.

by Jane Haskins, Esq.
updated January 30, 2023 ·  4min read

Selective incorporation sounds like a way of filing articles of incorporation to form a new business. But selective incorporation has nothing to do with business corporations. It’s a constitutional law concept that refers to the way that selected provisions of the U.S. Bill of Rights have been applied to the states through the equal protection clause of the Fourteenth (14th) Amendment.

The Bill of Rights is another name for the first ten amendments to the U.S. Constitution. Those amendments establish many fundamental rights, including freedom of religion, freedom of the press, the right to a jury trial, and the right to bear arms. The Bill of Rights also protects against unreasonable search and seizure and establishes the privilege against self-incrimination.

The history of the Bill of Rights

When the original Constitution was drafted, it described what the new American government could do, but it did not guarantee that the government would not infringe on citizens’ rights. Some of the states, freshly independent from English rule, refused to ratify the Constitution unless it also restricted the federal government’s power.

To resolve the problem, the Bill of Rights was adopted in 1791.

Because the Bill of Rights was designed to restrict federal powers, it originally only applied to the federal government. In 1833, the Supreme Court specifically held that the Bill of Rights only applied to the federal government and not state governments.

That meant that states could—and did—pass laws that violated protections such as freedom of speech and freedom of the press. States could establish religions, arrest and interrogate criminal suspects, and conduct trials in whatever manner they chose. And federal courts had no authority to intervene.

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 was interpreted to extend the guarantees in the Bill of Rights to the states.

Selective incorporation of the Bill of Rights to the states

In the 1925 case of Gitlow v. New York, the Supreme Court held for the first time that the 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.

This case-by-case approach to deciding which portions of the Bill of Rights to apply to the states is known as selective incorporation.

The debate over selective vs. total incorporation

As more cases began to come before the Supreme Court to challenge states’ authority to make laws that violated the Bill of Rights, a difference of opinion developed between the justices.

Some justices believed that the 14th Amendment’s Due Process Clause should be applied to the entire Bill of Rights. They advocated total incorporation of the Bill of Rights so that the states would be prohibited from the same actions as the federal government.

Other justices advocated selective incorporation of only certain portions of the Bill of Rights. They argued that the incorporation of protections such as the right to a jury trial in civil cases involving more than $20 would place an undue burden on states. Other provisions would be illogical to apply to states, such as the 10th Amendment’s guarantee that powers not granted to the federal government are reserved to the states.

Ultimately, the 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.

Rights that have been applied to states through selective incorporation

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:

  • The First Amendment’s freedom of speech, press, and religion
  • The First Amendment’s prohibition of state-established religion
  • The Second Amendment’s right to bear arms
  • The Fourth Amendment’s ban on unreasonable search and seizure
  • The Fifth Amendment’s privilege against self-incrimination
  • The Sixth Amendment’s right to a speedy trial
  • The Eighth Amendment’s protection against cruel and unusual punishment

A few of the protections in the Bill of Rights have not been applied to the states, including:

  • The Sixth Amendment’s right to a jury selected from residents of the state and district where the crime allegedly occurred.
  • The Seventh Amendment, which guarantees a jury trial in civil cases involving more than $20
  • The Eighth Amendment’s protection against excessive fines

Over the past century, the doctrine of selective incorporation has extended most of the Bill of Rights to protect citizens against actions by the states as well as the federal government. Therefore, with a few exceptions, states are not allowed to enact laws that violate the Bill of Rights' fundamental protections.

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Jane Haskins, Esq.

About the Author

Jane Haskins, Esq.

Jane Haskins is a freelance writer who practiced law for 20 years. Jane has litigated a wide variety of business dispute… Read more

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