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3.7 Selective Incorporation & the 14th Amendment

6 min readfebruary 11, 2023

Annika Tekumulla

Annika Tekumulla

Riya Patel

Riya Patel


AP US Government 👩🏾‍⚖️

240 resources
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What is Selective Incorporation?

Selective Incorporation is the process by which the Supreme Court applies the provisions of the Bill of Rights (which are the first ten amendments to the U.S. Constitution) to the states through the Due Process Clause of the Fourteenth Amendment. Before the incorporation process, the Bill of Rights was only applicable to the federal government and not the states. Through selective incorporation, the Supreme Court has incorporated many of the provisions of the Bill of Rights, such as the right to free speech, religion, and bear arms, and applied them to the states, thereby providing broader protection of individual rights against state governments. This process has been ongoing and the Supreme Court continues to evaluate which provisions of the Bill of Rights should be incorporated and how they should be applied to the states.

How does it work?

Selective Incorporation works through the legal process of judicial review, in which the Supreme Court evaluates whether a particular law or government action complies with the Constitution. In the context of selective incorporation, the Supreme Court has the power to determine whether a particular provision of the Bill of Rights should be applied to the states.
When a person challenges a state law or action as violating their constitutional rights, the Supreme Court will apply a level of scrutiny to determine whether the law or action complies with the Due Process Clause of the Fourteenth Amendment. If the Supreme Court determines that the law or action violates a provision of the Bill of Rights that has been incorporated, it will strike down the law or action as unconstitutional.
The incorporation process has been ongoing, with the Supreme Court gradually incorporating more provisions of the Bill of Rights over time. The Court considers various factors when evaluating whether to incorporate a provision, such as the historical background and significance of the provision, the practical importance of the right in question, and the nature of the interests involved.
In summary, selective incorporation works through the legal process of judicial review, in which the Supreme Court applies the provisions of the Bill of Rights to the states through the Due Process Clause of the Fourteenth Amendment, and determines whether state laws or actions comply with the Constitution.

Cases & Examples

An example of this is the court case of McDonald v Chicago (2010). McDonald v. Chicago (2010) was a landmark Supreme Court case that dealt with the Second Amendment right to bear arms and the extent to which that right could be regulated by states and cities. The plaintiff, Otis McDonald, was a resident of Chicago who claimed that the city's strict gun control laws violated his right to keep and bear arms. The Supreme Court ultimately held that the Second Amendment right to bear arms applies to the states through the incorporation of the Bill of Rights through the Fourteenth Amendment's Due Process Clause. The decision limited the power of states and cities to regulate firearms and ensured that the individual right to bear arms was protected against government infringement.
Another historic court case related to selective incorporation is Mapp v Ohio (1961). This case ruled that illegally seized evidence cannot be used in court against the accused. The Supreme Court held that evidence collected from an unlawful search must be excluded from trial. This ruling incorporated the Fourth Amendment’s protection of privacy using the Due Process Clause of the 14th Amendment.
Other important cases involving selective incorporation include:
  1. Gitlow v. New York (1925): The Supreme Court first applied the Due Process Clause of the Fourteenth Amendment to protect freedom of speech and press.
  2. Palko v. Connecticut (1937): The Supreme Court held that certain provisions of the Bill of Rights were fundamental and therefore incorporated against the states through the Due Process Clause of the Fourteenth Amendment.
  3. Duncan v. Louisiana (1968): The Supreme Court incorporated the Sixth Amendment right to a trial by jury against the states.
These cases help to illustrate the evolution of the selective incorporation doctrine, and how the Supreme Court has used the Due Process Clause of the Fourteenth Amendment to apply certain provisions of the Bill of Rights to the states. These decisions have helped to ensure that individual rights are protected against state intrusion, and that the states are held to the same standards as the federal government in terms of protecting individual rights and liberties.
🎥 Watch: AP GOPO - Breaking Down the 14th Amendment

Summary

Key Terms

  • Due Process Clause: A clause in the 14th Amendment that requires the government to follow fair and just procedures when it takes away a person's life, liberty, or property.
  • Selective Incorporation: A process by which the Supreme Court incorporates provisions of the Bill of Rights into the 14th Amendment's Due Process Clause, making them applicable to the states.
  • Bill of Rights: The first ten amendments to the US Constitution, which protect individual rights and liberties against government infringement.
  • Fourteenth Amendment: An amendment to the US Constitution that provides equal protection under the law to all citizens and ensures that the government does not act arbitrarily or unjustly.
  • Supreme Court: The highest court in the US, which has the final say on issues of constitutional law and interpretation.
  • Fundamental Rights: Essential rights and liberties protected by the Constitution, such as freedom of speech, religion, and due process of law.
  • Incorporation: The process of applying provisions of the Bill of Rights to the states through the Due Process Clause of the 14th Amendment.
  • Exclusionary Rule: The rule that evidence obtained illegally is not admissible in court.

Key Takeaways

Some takeaways of the Due Process Clause and selective incorporation are:
  1. The Due Process Clause of the 14th Amendment guarantees that the government must follow fair and just procedures when it takes away a person's life, liberty, or property.
  2. Selective incorporation is the process by which the Supreme Court applies certain provisions of the Bill of Rights to the states through the Due Process Clause of the 14th Amendment.
  3. Through selective incorporation, the Supreme Court has protected individual rights against government intrusion, such as freedom of speech, press, and the right to bear arms, among others.
  4. Court cases such as McDonald v Chicago (2010), Mapp v Ohio (1961), Gitlow v. New York (1925), Palko v. Connecticut (1937), and Duncan v. Louisiana (1968) have been instrumental in shaping the interpretation of the Due Process Clause and selective incorporation.
  5. The Due Process Clause and selective incorporation play a crucial role in ensuring that individual rights are protected against government infringement, and that the government acts fairly and justly.

Questions for Review

What is the Due Process Clause of the Fourteenth Amendment?

The Due Process Clause of the Fourteenth Amendment is a constitutional provision that requires the government to follow fair and just procedures when it takes away a person's life, liberty, or property. It ensures that the government does not act arbitrarily or unjustly and that individual rights are protected against government infringement.

How does the Due Process Clause protect individual rights against government intrusion?

The Due Process Clause protects individual rights against government intrusion by requiring the government to follow certain procedures when it takes away a person's life, liberty, or property. For example, the Clause requires the government to provide a fair trial, to give notice and an opportunity to be heard, and to provide a neutral and impartial decision-maker. The courts use various tests and standards, such as the "clear and present danger" test, to strike a balance between the state's power to regulate and the individual's rights and liberties.

What is selective incorporation and how does it work?

Selective incorporation is a legal doctrine that applies the Bill of Rights (the first ten amendments to the U.S. Constitution) to the states through the Due Process Clause of the Fourteenth Amendment. It means that certain provisions of the Bill of Rights are incorporated against the states, making them enforceable through the Due Process Clause. The Supreme Court uses a variety of tests, such as the "fundamental rights" test, to determine which provisions of the Bill of Rights should be incorporated.

What are some examples of court cases that involve selective incorporation?

Examples of court cases that involve selective incorporation include McDonald v. Chicago (2010), Mapp v. Ohio (1961), Gitlow v. New York (1925), Palko v. Connecticut (1937), and Duncan v. Louisiana (1968). These cases dealt with a wide range of individual rights, including freedom of speech, the right to a fair trial, the right to privacy, the right to bear arms, and the right to a trial by jury.

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