3.7 Selective Incorporation & the 14th Amendment

TLDR

Selective incorporation is how the Supreme Court applies most protections in the Bill of Rights to state governments, using the due process clause of the Fourteenth Amendment. It limits what states can do by extending fundamental civil liberties beyond just the federal government, which is why cases about state or local laws can still turn on Bill of Rights protections.

Selective Incorporation AP Gov Definition

Selective incorporation is the Supreme Court doctrine that applies select protections in the Bill of Rights to state governments through the due process clause of the Fourteenth Amendment. It matters because the Bill of Rights originally limited the national government, but incorporation makes many civil liberties enforceable against states and local governments too.

The required case to know is McDonald v. Chicago (2010), which incorporated the Second Amendment right to bear arms against state and local governments.

Why This Matters for the AP Gov Exam

Selective incorporation connects the Bill of Rights to the Fourteenth Amendment, which is a major theme in Unit 3. It explains why a state law can be struck down for violating a civil liberty, even though the Bill of Rights originally limited only the national government.

This doctrine is especially useful on the SCOTUS Comparison FRQ (FRQ 3), where you may need to explain how a required case like McDonald v. Chicago relates to a non-required case dealing with state limits on civil liberties. It also shows up in MCQs that test whether you can identify when and how a right applies to the states.

Key Takeaways

• The Bill of Rights originally restricted only the federal government, not the states.
• Selective incorporation extends select protections of the Bill of Rights to the states through the due process clause of the Fourteenth Amendment.
• It is "selective" because the Court incorporates rights one at a time, not all at once.
• The Court asks whether a right is fundamental to liberty before applying it to the states.
• McDonald v. Chicago (2010) is the required case that incorporated the Second Amendment right to bear arms.
• Incorporation limits state regulation of civil liberties and creates more consistent protections across the country.

What Is Selective Incorporation?

Selective incorporation is the doctrine that extends select protections of the Bill of Rights to the states through the due process clause of the Fourteenth Amendment. In short, it limits how state governments can regulate civil liberties.

Originally, the Bill of Rights restricted only the federal government. That meant a state could pass laws affecting rights like free speech or fair trial procedures without violating the U.S. Constitution. Selective incorporation changed that by applying key protections to state and local governments too.

It is called "selective" because the Court does not apply the entire Bill of Rights to the states all at once. Instead, it decides which rights are fundamental to liberty and incorporates them case by case.

How It Works

Selective incorporation operates through the courts. When someone argues that a state or local law violates a constitutional right, the Supreme Court examines whether that right is protected against the states through the Fourteenth Amendment's due process clause.

If the Court finds that the right is fundamental and applies to the states, it can rule the state law unconstitutional. This is what makes civil liberties more consistent across federal, state, and local levels.

The Court generally weighs:

• Whether the right is fundamental to ordered liberty
• Prior rulings and historical context
• The importance of the liberty compared to the burden on states

Because incorporation is selective rather than automatic, the list of rights applied to the states has grown over time through different cases.

The Required Case: McDonald v. Chicago (2010)

This is the required Supreme Court case tied to selective incorporation, so know it well.

• Issue: Otis McDonald challenged a Chicago handgun ban, arguing it violated his Second Amendment right to bear arms.
• Ruling: The Court held that the Second Amendment applies to state and local governments through the due process clause of the Fourteenth Amendment.
• Why it matters: McDonald incorporated the right to bear arms, limiting how far states and cities can go in regulating firearms. It is a clear, direct example of selective incorporation in action.

Other Cases That Show Incorporation

These cases are useful illustrations of how incorporation works, but McDonald v. Chicago is the required case for this topic. Use the others as examples to support your reasoning.

• Gideon v. Wainwright (1963): Applied the right to an attorney to the states, helping ensure fair trials at the state level. (This is a required case in AP Gov, but it is most directly tied to due process and the rights of the accused.)
• Engel v. Vitale (1962): Applied First Amendment establishment clause protections to state-sponsored activity, showing how religious liberty protections reach the states.

When you write about incorporation, you can use these to explain how the Fourteenth Amendment forces states to respect rights found in the Bill of Rights.

Key Terms

How to Use This on the AP Gov Exam

These are the most relevant exam uses for selective incorporation, not every possible question type.

MCQ

Expect questions that ask you to identify how a right applies to the states. A reliable approach:

• Is the case about a state or local government limiting a civil liberty?
• Is that liberty in the Bill of Rights?
• Has the Court extended that right to the states through the Fourteenth Amendment?

If yes to all three, the state action may be unconstitutional.

FRQ 3: SCOTUS Comparison

McDonald v. Chicago is a strong required case to compare with a non-required case involving state limits on a civil liberty. Be ready to explain the shared principle: the due process clause of the Fourteenth Amendment extends Bill of Rights protections to the states. Do not just list similarities. Explain how the reasoning connects.

FRQ 1: Concept Application

A scenario might describe a state or city law that restricts a right. You can apply selective incorporation to explain why that liberty is protected against the state and how a court might respond.

Common Trap

Saying a right automatically applies to the states. Incorporation happens case by case, and only rights the Court treats as fundamental have been applied.

Common Misconceptions

• The Bill of Rights did not originally limit the states. It restricted only the federal government until incorporation extended protections through the Fourteenth Amendment.
• Selective incorporation does not apply the entire Bill of Rights at once. The Court incorporates rights individually based on whether they are fundamental.
• Incorporation works mainly through the due process clause of the Fourteenth Amendment, not the equal protection clause. Equal protection deals with discrimination, which is a different issue.
• McDonald v. Chicago is the required case here, but it does not mean every gun regulation is unconstitutional. It means the Second Amendment applies to the states and limits how far they can go.
• Incorporation limits state power over civil liberties. It does not give the federal government unlimited control over the states.

Related AP Gov Guides

• 3.14 Required Supreme Court Cases
• Unit 3 Overview: Civil Liberties and Civil Rights
• 3.1 The Bill of Rights
• 3.2 First Amendment: Freedom of Religion
• 3.3 First Amendment: Freedom of Speech
• 3.8 Amendments: Due Process and the Rights of the Accused