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What is 'selective incorporation' and how is it related to the US Supreme Court and the Bill of Rights?
Wiki User
∙ 13y ago
History
The Bill of Rights 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.
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."
Cases that Upheld Incorporation
First Amendment (incorporated)
- Everson v. Board of Education, 330 US 1 (1947) clarified the Establishment Clause.
- Cantwell v. Connecticut, 310 US 296 (1940) held that the state couldn't impose restrictions on religious grounds.
- Gitlow v. New York, 268 US 652 (1925) held that the Fourteenth Amendment required the States to adhere to the First Amendment.
- Near v. Minnesota, 283 US 697 (1931) held that the Minnesota "gag law" violated freedom of the press.
- De Jonge v. Oregon, 299 US 353 (1937) held that Oregon's criminal syndicalism law was unconstitutional.
- NAACP v. Alabama, 357 US 449 (1958) Used Due Process Clause of Fourteenth Amendment to establish the right to expressive association, which is not specifically mentioned in the First Amendment.
Second Amendment (incorporated)
- District of Columbia v. Heller, 554 US ___ (2008) determined District of Columbia handgun ban was a violation of respondent's Second Amendment right to own and bear arms.
- McDonald v. City of Chicago, 561 US ___ (2010) held self-protection is a fundamental right and incorporated the Second Amendment to the states via the Fourteenth Amendment Due Process Clause.
Third Amendment (not fully incorporated)
- 2nd Circuit ruling in Engblom v. Carey upheld Third Amendment rights, but decision only applies to Connecticut, New York, and Vermont. Decision only has persuasive authority over remainder of states.
Fourth Amendment (incorporated)
- Mapp v. Ohio, 367 US 643 (1961) protected individuals against unreasonable search and seizure.
- Aguilar v. Texas, 378 US 108 (1964) explicated warrant requirements.
Fifth Amendment (partially incorporated)
- Benton v. Maryland, 395 US 784 (1969) disallows trial for the same crime more than once.
- Malloy v. Hogan, 378 US 1 (1964) upheld personal rights against self-incrimination.
- Chicago, Burlington & Quincy Railroad v. City of Chicago, 166 US 226 (1897) upheld Takings Clause, prohibiting exercising eminent domain without fair compensation.
- Miranda v. Arizona, 384 US 436 (1966) The Miranda warning falls under the Fifth Amendment as a legal precaution, rather than a Constitutional mandate.
Sixth Amendment (incorporated)
- Klopfer v. North Carolina, 386 US 213 (1967) upheld the right to a speedy trial.
- In re Oliver, 333 US 257 (1948) upheld the right to a public trial.
- Duncan v. Louisiana, 391 US 145 (1968) ruled that trial by jury does not extend to juveniles in state court.
- In re Oliver, 333 US 257 (1948) upheld the right to notice of accusations.
- Pointer v. Texas, 380 US 400 (1965) upheld right to confront adversary witnesses.
- Washington v. Texas, 388 US 14 (1967) held subpoenas have to be issued for witness testimony.
- Gideon v. Wainwright, 372 US 335 (1963) upheld right to assistance of counsel.
Seventh Amendment (not incorporated)
- Right to jury trial in civil cases not imposed on states.
Eighth Amendment (partially incorporated)
- Murphy v. Hunt, 455 US 478 (1982) petition for certiorari on case of excessive bail, dismissed as moot once defendant was sentenced. No other challenge.
- Robinson v. California, 370 US 660 (1962) ruled that imprisonment for addiction (only) was cruel and unusual punishment.
- Baze and Bowling v. Rees, 553 US ___ (2008) held that death by lethal injection did not constitute cruel and unusual punishment.
Ninth Amendment (Not triable)
Tenth Amendment (Does not address individual rights)
Selective incorporation means that certain guarantees in the Bill of Rights protect citizens from state government as well as the federal government.
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∙ 13y ago
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Which theory of incorporation holds that the fourteenth amendment applied to the entire bill of rights to the states?
Total or Mechanical Incorporation (sometimes also called complete incorporation), which was championed by Justice Hugo Black. The US Supreme Court uses "selective incorporation," however.For more information, see Related Questions, below.
Did the US Supreme Court apply the entire Bill of Rights to the states under doctrine of Total Incorporation?
No. The US Supreme Court used the doctrine of "Selective Incorporation" to apply the Bill of Rights to the States on a clause-by-clause basis, as they became relevant to cases before the Court.
What principle of incorporation does the US Supreme Court use?
The US Supreme Court uses "Selective Incorporation" to apply individual clauses within the Bill of Rights to the States via the Fourteenth Amendment Due Process or Equal Protection Clauses.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.Total or Mechanical Incorporation (sometimes also called complete incorporation), the method championed by Justice Hugo Black, would have used the Fourteenth Amendment to apply the entire Bill of Rights to the States at one time. The US Supreme Court has chosen to use "selective incorporation," however. The principle of selective incorporation upholds or rejects as inapplicable individual clauses within each Amendment when they are considered relevant to a case before the Court.For more information, see Related Questions, below.
Which Amendment was interpreted by the Supreme Court to establish its authority to determine if a state was violating the rights of citizens contained in the Bill of Rights?
The US Supreme Court has used the Fourteenth Amendment, under the Due Process Clause and Equal Protect Clause, to selectively incorporate the Bill of Rights to the states.For more information on selective incorporation, see Related Questions, below.
What has the US Supreme Court done with the Bill of Rights one clause at a time?
Using the process of "selective incorporation," the US Supreme Court has applied most of the Bill of Rights to the States via the Fourteenth Amendment Due Process and Equal Protection Clauses. The Second and Seventh Amendment have not yet been incorporated.
Which theory of incorporation holds that the fourteenth amendment applied to the entire bill of rights to the states?
Total or Mechanical Incorporation (sometimes also called complete incorporation), which was championed by Justice Hugo Black. The US Supreme Court uses "selective incorporation," however.For more information, see Related Questions, below.
When the Supreme Court says that specific parts of the Bill of Rights apply to the actions of state government, they are engaging the doctrine of?
selective incorporation
What theory of incorporation holds that the fourteenth amendment applied the bill of rights to the states nothing more and nothing less?
Total or Mechanical Incorporation (sometimes also called complete incorporation), which was championed by Justice Hugo Black. The US Supreme Court uses "selective incorporation," however.For more information, see Related Questions, below.
What term describes the view that only fundamental bill of rights protection ms should apply to the states?
Selective incorporation
Did the US Supreme Court apply the entire Bill of Rights to the states under doctrine of Total Incorporation?
No. The US Supreme Court used the doctrine of "Selective Incorporation" to apply the Bill of Rights to the States on a clause-by-clause basis, as they became relevant to cases before the Court.
What is the selective incorporation process?
Selective Incorporation has nothing to do with corporations. It's a legal doctrine related to the Supreme Court deciding whether certain parts of the Bill of Rights are held to be applicable to the states as the result of the ratification of the 14th Amendment. Most of the first 8 amendments and the 13th Amendment are held to be applicable to the states as well as the Federal government.
What principle of incorporation does the US Supreme Court use?
The US Supreme Court uses "Selective Incorporation" to apply individual clauses within the Bill of Rights to the States via the Fourteenth Amendment Due Process or Equal Protection Clauses.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.Total or Mechanical Incorporation (sometimes also called complete incorporation), the method championed by Justice Hugo Black, would have used the Fourteenth Amendment to apply the entire Bill of Rights to the States at one time. The US Supreme Court has chosen to use "selective incorporation," however. The principle of selective incorporation upholds or rejects as inapplicable individual clauses within each Amendment when they are considered relevant to a case before the Court.For more information, see Related Questions, below.
Which Amendment was interpreted by the Supreme Court to establish its authority to determine if a state was violating the rights of citizens contained in the Bill of Rights?
The US Supreme Court has used the Fourteenth Amendment, under the Due Process Clause and Equal Protect Clause, to selectively incorporate the Bill of Rights to the states.For more information on selective incorporation, see Related Questions, below.
What doctrine adopted by the supreme court allowed application of the bill of rights to the states?
The Fourteenth Amendment Due Process Clause has been used to apply the Bill of Rights (the first ten Amendments to the Constitution) to the States, under the doctrine of "selective incorporation."For more information, see Related Questions, below.
what term describes the view that only fundamental bill of rights protections should apply to the states ?
selective incorporation
Which theory of incorporation is best supported by the 14th amendment?
Total incorporation (sometimes called "mechanical incorporation" or "complete incorporation") would apply the first eight amendments of the Bill of Rights (the Ninth and Tenth aren't individual rights; the Ninth isn't triable) to the states as a single unit via the Fourteenth Amendment, as some constitutional scholars argue was the original intent. The US Supreme Court has elected to use a process called selective incorporation, which applies individual clauses to the states via the Fourteenth Amendment Due Process and Equal Protection Clauses, as needed.
Which amendment has allowed the supreme court to start forcing states to follow parts of the bill of rights?
The US Supreme Court has applied most of the first eight amendments in the Bill of Rights to the States through the doctrine of "selective incorporation" primarily via the Fourteenth Amendment Due Process Clause.
