Topic 3.7 Notes – Selective Incorporation

What Selective Incorporation Is

The Bill of Rights was originally understood as a limit on the national government, not the states. That was confirmed in Barron v. Baltimore (1833), when the Court said Baltimore did not have to follow the Fifth Amendment because the Bill of Rights did not bind state or local governments.

After the Civil War, the Fourteenth Amendment changed that relationship by directly limiting state action. Through its due process clause, the Court has made most Bill of Rights protections enforceable against states and local governments.

That is selective incorporation. When a state violates an incorporated right, the constitutional link is the Fourteenth Amendment enforcing a Bill of Rights liberty against the state.

This applies to government actors such as:

• state legislatures passing laws
• cities and counties making local rules
• police departments enforcing criminal law
• public schools setting school policies

It does not apply to purely private conduct. A private person or business is usually not committing a Fourteenth Amendment violation.

How Incorporation Developed

“Selective” means the Court incorporated rights one at a time, not all at once. The usual test asks whether a right is fundamental to ordered liberty or deeply rooted in the nation’s history and tradition.

Selective and total incorporation

• Selective incorporation is the real Supreme Court approach. It happens gradually, case by case.
• Total incorporation was the rejected idea that all Bill of Rights protections automatically applied to the states through the Fourteenth Amendment.

The path mattered because the Slaughter-House Cases (1873) narrowed the Fourteenth Amendment’s privileges or immunities clause, so incorporation developed mainly through due process instead.

A few landmark steps:

• Chicago, Burlington & Quincy Railroad Co. v. Chicago (1897) brought in just compensation for takings.
• Gitlow v. New York (1925) treated free speech and free press as liberties protected from state infringement.

Most, but not all, rights are incorporated. Two examples students forget:

• Fifth Amendment grand jury indictment requirement
• Seventh Amendment civil jury trial right

Also, structural rules like the Tenth Amendment are outside incorporation because incorporation is about individual liberties, not the overall design of federalism.

How to Analyze an Incorporation Case

In exam questions, incorporation and violation are two separate issues.

1. Find the state action. Is the law or action coming from a state, city, school district, police department, or other public actor?
2. Identify the liberty involved. Speech, religion, counsel, guns, search and seizure, and so on.
3. Ask whether that right has been incorporated. In most modern cases, precedent already answers this.
4. Ask whether the right was actually violated. A state can be bound by a right and still win the case.

That last step is the big distinction. “This right applies to the states” does not mean “the state automatically acted unconstitutionally.”

McDonald v. Chicago

Heller (2008) recognized an individual Second Amendment right to possess a handgun for self-defense in the home against the federal government. McDonald v. Chicago (2010) asked whether that same right also limits state and local governments.

Chicago’s handgun rules effectively kept residents like Otis McDonald from legally having handguns at home. The Court ruled 5-4 that the Second Amendment right recognized in Heller is incorporated against the states through the Fourteenth Amendment.

Otis McDonald

The majority said self-defense is fundamental and deeply rooted in American history and tradition. Justice Thomas agreed with the result but said the better constitutional path was the privileges or immunities clause, not due process.

The case mattered because it:

• created a national minimum for this civil liberty
• limited state and local power under federalism
• increased federal court oversight of state gun laws

McDonald did not say every gun regulation is unconstitutional. It said state and local gun laws must comply with the Second Amendment.

What Selective Incorporation Means for Civil Liberties and Federalism

Selective incorporation creates a national constitutional floor. States may protect more rights than the federal Constitution requires, but not less.

You can see that in other required cases:

• Engel v. Vitale (1962) used the establishment clause against state public schools.
• Gideon v. Wainwright (1963) applied the Sixth Amendment right to counsel to the states.
• Tinker v. Des Moines (1969) used free speech limits against public school officials.

Incorporated rights are still not absolute. Reynolds v. United States allowed a ban on polygamy, drawing a belief-versus-conduct distinction. Employment Division v. Smith (1990) said Oregon could ban peyote use in religious ceremonies because neutral laws of general applicability can still stand.