Doctrine of Selective Incorporation

Doctrine of Selective Incorporation

Some states during the 19th and 20th centuries began to either fail to enforce or interpret broadly enough their own states’ Bill of Rights – – protecting the individuals who lived in their states from the 
abuse by the state governments
 of their liberties. Individuals brought suit to challenge state laws that unreasonably restricted their freedom of speech and religion, denied them the right to counsel, and the right to not be unreasonably searched by state and local police etc.

The U.S. Supreme Court had made it clear that the Bill of Rights applied only to federal government’s actions that infringed on the list of protected liberties found in first 10 Amendments 
.
 It had to find the “vehicle” or means by which to apply these protected liberties to 
state governments
. It did this on a case-by-case basis through a process known as 
selective incorporation
.

The Court has selectively incorporated or “poured into” the 
14th Amendment’s Due Process Clause
, most provisions of the Bill of Rights, thus 
limiting the power of state and local governments to infringe on individual liberty. 
States may always provide greater protections, but not fewer protections through their state constitutions and state laws. So, for example, a State X could provide same sex couples the right to marry.

The justices had to address this question:

What rights should be incorporated to restrict the states from infringing on liberty?

Justice Cardozo, in 
Palko v. Connecticut 
(1937 
)
 said”the rights to be incorporated are those implicit in the concept of ordered liberty, and thus through the Fourteenth Amendment become valid against the states”(Palko). “…[R]ights so important that neither liberty nor justice would exist if they were sacrificed” (Palko); those rights must be selectively incorporated to restrict the states from infringing on our liberties.

Some provisions have not been incorporated to reach the states because
:

States have been found to have done a good job protecting these rights;

They are not so critical that “liberty or justice” would be sacrificed if not incorporated;

The U.S. Supreme Court has not yet addressed the issue.

This is an image labeled the Doctrine Selective Incorporation. 

It has a two handled faucet as you might find in the bathroom of your home. The faucet is labeled Selective Incorporation. The water stream coming from it is labeled The Bill of Rights 1-10 Amendments {Applies to the Federal Government – limits the Federal Government from infringing “unreasonably” upon individuals’ liberties}. 

The water contains the words Speech, Jury Trial, Religion, Search & Seizure, Counsel. 

The water flows into a cup labeled 14th Amendment Due Process “Liberty” with an arrow pointing downward to the words State Governments Most amendments have been ‘selectively’ incorporated to apply to the states, and a final arrow downward to People. 

The amendments that 
have been selectively incorporated
 
are:

1st Amendment — all provisions of the 1st Amendment;

2nd Amendment — right to bear arms

4th Amendment — protection against unreasonable searches and seizures;

5th Amendment — Double Jeopardy, Protections Against Self-Incrimination, Eminent Domain;

6th Amendment — all protections for the accused at trial;

8th Amendment — Prohibition against cruel and unusual punishment and freedom from “excessive” fines

9th Amendment — right to marital privacy

Amendments that have 
NOT 
been selectively incorporated are:

3rd Amendment — Quartering of soldiers;

5th Amendment — Grand Jury requirement for capital or serious crimes;

7th Amendment – – Right to a Jury Trial in a Civil case;

8th Amendment — Freedom from “excessive” bail.

To determine if a state protects rights that have not been selectively incorporated into the 14th Amendment Due Process Clause, look to the state’s constitution and its Bill of Rights. If the state constitution does not protect a certain liberty that is protected by the U.S. Constitution then go to court and hope to argue before the U.S. Supreme Court that it is time to selectively incorporate that right protected by the National Bill of Rights and make it apply to all fifty states. However, if a liberty is not protected by the state constitution or the U.S. Constitution, then advocates for it being protected must either work to change the state constitution or U.S. Constitution through the amendment process.