Selective Incorporation

What is selective incorporation?

Selective incorporation is the case-by-case application of the Bill of Rights to the states through the Fourteenth Amendment. It is used to limit state regulations that may infringe on civil rights and liberties. When the Bill of Rights was added to the Constitution in 1791, its protections only applied to the federal government, not the state governments. In 1868, during Reconstruction, Congress ratified the Fourteenth Amendment, extending equal protection and due process to all persons in the United States in 1868. While the Amendment was mainly intended to protect the rights of newly-freed people, citizens began to seek the Supreme Court’s review of state laws and procedures they believe infringed on other rights under the Bill of Rights. The Court used selective incorporation to protect people from state infringements on Constitutional rights, such as freedom of speech, beginning in 1925.

How is selective incorporation applied?

The Supremacy Clause states that the Constitution is the “supreme law of the land.” Therefore, both federal and state laws must abide by the words of the Constitution. The Bill of Rights, though, only applied to federal laws. Then, citizens called upon the Supreme Court to rule on whether the Fourteenth Amendment to the Constitution expanded coverage of certain rights under the Bill of Rights applied to the states, too.

Sometimes, the Supreme Court hears a case where a state law appears to be in violation of a civil liberty protected by the Bill of Rights. In this situation, the Court can reason that the law violates the Due Process Clause of the Fourteenth Amendment, which does apply to all states. The amendment states that no state can take away “liberty” without due process of law. If the Court holds that a state law infringes on a “liberty” protected by the Bill of Rights, that amendment is incorporated into the states.

Selective Incorporation and the Warren Court

Selective incorporation became more prominent in the jurisprudence of the Supreme Court under Chief Justice Earl Warren (1953-1969). During this time, many challenges to state laws and practices under criminal laws were brought to the Court. Throughout the 1960s, the Court used selective incorporation to apply certain protections in the Bill of Rights to state criminal procedures.

For example, Miranda v. Arizona (1966) held that law enforcement must advise persons in custody of their right to remain silent. Chief Justice Warren wrote for the Court that protection from self-incrimination is “essential” to the criminal justice system as it is one of the provisions of the Fifth Amendment. As the Fourteenth Amendment guarantees that equal protection and due process of law extend to all persons, state laws may not infringe upon those rights. Therefore, the Supreme Court incorporated the Fifth Amendment to the states through its decision in Miranda v. Arizona.

The Warren Court also incorporated the Fourth and Sixth Amendments, which also address the rights of the accused in criminal cases. Mapp v. Ohio (1961) incorporated the exclusionary rule of the Fourth Amendment, enhancing protection from unreasonable search and seizure. The right to a lawyer, guaranteed by the Sixth Amendment, was incorporated by the Court in Gideon v. Wainwright (1963).