Selective Incorporation

Definition

Selective incorporation is a constitutional doctrine that ensures that certain protections in the Bill of Rights are applied to state governments through the Fourteenth Amendment's Due Process Clause. This process involves the Supreme Court gradually applying these rights to the states on a case-by-case basis, thus safeguarding individual liberties against state infringement while recognizing that not all rights are equally applicable.

5 Must Know Facts For Your Next Test

1. The process of selective incorporation began in the early 20th century with cases like Gitlow v. New York (1925), which applied free speech protections to the states.
2. Not all rights in the Bill of Rights have been incorporated; for example, the right to bear arms was selectively incorporated through McDonald v. City of Chicago (2010).
3. The Supreme Court uses a balancing test to determine which rights are fundamental enough to warrant incorporation based on their importance to the concept of ordered liberty.
4. Incorporation has significant implications for civil rights and liberties, as it prevents states from enacting laws that infringe upon federally recognized rights.
5. Selectively incorporated rights have evolved over time, with ongoing debates about which additional rights should be incorporated and how they impact state laws.

Review Questions

• How does selective incorporation change the relationship between state governments and individual rights?
  • Selective incorporation shifts the balance of power by applying certain federal protections found in the Bill of Rights to state governments through the Fourteenth Amendment. This means that individuals have legal recourse against states when their rights are violated, establishing a consistent standard for civil liberties across the country. Over time, this has enhanced the protection of individual freedoms by limiting state action that could infringe upon federally guaranteed rights.
• Evaluate how selective incorporation has evolved since its inception and its impact on contemporary legal challenges.
  • Since its emergence in the early 20th century, selective incorporation has progressively expanded the scope of individual rights protected from state interference. Initially limited to a few amendments, it has grown to encompass various fundamental freedoms, impacting contemporary legal challenges related to civil liberties. The evolution reflects changing societal values and judicial interpretations, highlighting ongoing discussions about which rights should be incorporated and how they align with modern principles of justice.
• Assess the implications of selective incorporation for federalism in the United States.
  • Selective incorporation significantly impacts federalism by redefining how power is distributed between state and federal governments regarding individual rights. As certain Bill of Rights protections become applicable to states, it creates a more uniform standard for civil liberties across the nation, reducing the variability that previously existed among states. This shift can lead to tension between state sovereignty and federal oversight, prompting debates on states' rights and the extent to which they can legislate independently from federal mandates.

Related terms

Fourteenth Amendment: The Fourteenth Amendment is a key constitutional provision that addresses citizenship rights and equal protection under the law, forming the basis for the selective incorporation of the Bill of Rights.

Bill of Rights: The Bill of Rights comprises the first ten amendments to the U.S. Constitution, which guarantee specific individual freedoms and protections against government overreach.

Due Process Clause: The Due Process Clause is part of the Fourteenth Amendment and prohibits states from depriving any person of life, liberty, or property without due process of law, serving as the legal basis for selective incorporation.