Selective Incorporation

Definition

Selective incorporation is a constitutional doctrine that ensures that certain protections in the Bill of Rights are applied to the states through the Due Process Clause of the 14th Amendment. This process gradually extended federal protections to individuals at the state level, recognizing that fundamental rights should not be infringed upon by state governments.

5 Must Know Facts For Your Next Test

1. Selective incorporation began with the Supreme Court case Gitlow v. New York in 1925, where the Court ruled that free speech protections applied to state governments.
2. The process uses the 'substantive due process' approach to determine which rights are fundamental and thus deserving of protection against state interference.
3. Over time, many provisions of the Bill of Rights have been selectively incorporated, including freedom of speech, freedom of religion, and the right to bear arms.
4. Not all rights in the Bill of Rights have been incorporated; for example, the right to a grand jury indictment has not been applied to the states.
5. Selective incorporation has led to significant changes in state laws and practices, as it provides a mechanism for individuals to challenge state actions that infringe upon their constitutional rights.

Review Questions

• How does selective incorporation change the relationship between federal and state governments regarding individual rights?
  • Selective incorporation alters the dynamic between federal and state governments by extending certain protections from the Bill of Rights to individuals against state infringement. This means that while states retain their authority, they cannot violate fundamental rights recognized by the federal Constitution. Through this process, individuals can assert their rights not just against federal actions but also against state actions, promoting a uniform standard for individual liberties across the nation.
• Discuss how landmark Supreme Court cases have shaped the process of selective incorporation over time.
  • Landmark Supreme Court cases like Gitlow v. New York and Mapp v. Ohio have significantly influenced the scope of selective incorporation. In Gitlow, the Court established that free speech protections apply at both federal and state levels, while Mapp extended Fourth Amendment protections against unreasonable searches and seizures to state courts. These decisions illustrate how judicial interpretations evolve and shape which rights are deemed fundamental, thereby altering how states interact with individual liberties.
• Evaluate the implications of selective incorporation on state sovereignty and individual rights within the American legal framework.
  • The implications of selective incorporation are profound for both state sovereignty and individual rights in the American legal framework. By applying certain Bill of Rights protections at the state level, it challenges states' autonomy in governance while simultaneously reinforcing individual freedoms. This balancing act raises important questions about the extent of federal oversight over state laws and how far states can go in legislating on issues that involve fundamental rights, ultimately shaping legal precedents and social norms across the country.

Related terms

Bill of Rights: The first ten amendments to the U.S. Constitution that outline specific prohibitions on governmental power, ensuring individual liberties.

Due Process Clause: A clause in the 14th Amendment that prohibits states from denying any person 'life, liberty, or property, without due process of law,' thus providing a basis for selective incorporation.

Fundamental Rights: Basic rights that are recognized as essential to the order and liberty of a free society, which can be protected from state infringement through selective incorporation.