What is Selective Incorporation?
Selective incorporation means that certain rights in the Bill of Rights – – but not all rights in the Bill of Rights – – apply to the states. States may not enact laws that would violate those rights in the Bill of Rights that apply to them. When a right in the Bill of Rights applies to the states, we say that the right is incorporated against the state.
Before reading more, the short video below introducing incorporation might be helpful:
As discussed in the video above, the first ten Amendments to the US Constitution are known as the Bill of Rights and, among other things, they protect certain freedoms. However, the Bill of Rights only refers to the federal government. One issue that arises in US courts is whether states may enact laws that would deprive people of rights guaranteed in the Bill of Rights.
The 14th Amendment Incorporates Many Rights in the Bill of Rights Against the States
The Supreme Court of the United States has held that the 14th Amendment to the United States Constitution incorporates many of the rights in the Bill of Rights against the States. That is, because the 14th Amendment’s Due Process Clause prohibits states from depriving people of life, liberty, or property without due process of law, many of the freedoms guaranteed in the Bill of Rights applies to the states.
For example, a person’s freedom of speech and freedom of religion, guaranteed in the First Amendment, applies to the states. As a result, if a state were to try and pass a law that deprives its citizens of the freedom of speech or the freedom of religion, that law would be unconstitutional. A court would say that the law violates the First Amendment to the United States Constitution as incorporated against the states by the 14th Amendment.
But not all rights…
Not all the rights in the Bill of Rights apply to the states. For example, the Supreme Court has yet to hold that the Eighth Amendment’s prohibition against excessive bail and fines applies to the states. Because not all of the rights in the Bill of Rights have been incorporated against the states, courts have described incorporation as ‘selective incorporation’. Only specific rights in the Bill of Rights, as identified by the Supreme Court, are incorporated against the states.