What does 'selective incorporation' mean in reference to the Constitution?

Answer 1

The Bill of Rights (the first ten Amendments to the Constitution) was understood from its inception to regulate the actions of the federal government, and did not originally apply to the states. All states had their own constitutions, and all state constitutions included a bill of rights, many of which mirrored the language of the US Constitution, and some of which afforded greater freedoms.

In the 18th and 19th centuries, the Supreme Court often ruled in favor of state law when they were presented with cases that contradicted the first nine amendments (the 10th doesn't really confer any rights). For example, in Barron v. Baltimore, 32 US 243 (1833), the Court ruled the 5th Amendment Takings Clause, which wasn't written into the Maryland Constitution, did not apply to the city of Baltimore or, by extension, to the state of Maryland.

An 1866 charge against the state of Massachusetts in Pervear v. Massachusetts, 72 US 475 (1866) had similar results. In this case, the petitioner filed for relief under the 8th Amendment after the State sentenced him to 3 months prison with hard labor for failing to maintain his state liquor license. The Court again responded that the 8th Amendment did not apply to state government, but to federal legislation, only.

After the Civil War, the US government decided it needed a way to enable Reconstruction and supplement the Civil Rights Act of 1866, so Congress created the 14th Amendment, ratified in July 1868, which could have applied the Bill of Rights to the States via Total Incorporation, but the Supreme Court restricted its use.

Congress later attempted to provide constitutional protection against discrimination by businesses and individuals when it passed the Civil Rights Act of 1875, but the US Supreme Court declared the Act unconstitutional in the Civil Rights Cases, 109 US 3 (1883), holding Congress lacked authority to regulate private entities.

Some historians hold that the 14th Amendment required states to adhere to the Bill of Rights, in toto, while others claim the individual amendments were designed to be incorporated selectively. The Supreme Court has followed the doctrine of selective incorporation, upholding individual clauses within each Amendment in a piecemeal fashion, and rejecting other clauses as inapplicable.

On June 28, 2010, the US Supreme Court incorporated the Second Amendment to the states as a result of their decision in McDonald v. City of Chicago, 561 US ___ (2010).

The Seventh Amendment is not incorporated, nor are portions of the Third and Eighth Amendments.

Amendment XIV, Section 1

"All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

For more information about Selective Incorporation and the Bill of Rights, see Related Links, below.