As one navigates through the vast array of legal principles and terminologies in the United States Constitution, the term “selective incorporation” often comes into focus. This judicial doctrine essentially refers to the way certain protections from the federal Bill of Rights are applied to the states through the Fourteenth Amendment’s Due Process Clause. The principle of selective incorporation implies that the Bill of Rights will continually evolve and extend to cover the individual liberties of American citizens, often shaping the legal landscape of the nation.
To delve deeper, the Bill of Rights is the first ten amendments to the United States Constitution. When first adopted, these amendments only limited the actions of the federal government. States, on the other hand, could establish their own laws, even if they encroached on some of the freedoms defined in the Bill of Rights. This changed when the Fourteenth Amendment was adopted in 1868, which included the Due Process Clause prohibiting states from depriving “any person of life, liberty, or property, without due process of law.”
The Supreme Court initially interpreted the Due Process Clause as not incorporating the Bill of Rights, in a doctrine known as dual federalism. However, starting in the early 20th century, and primarily during the 1940s and 1960s, the Supreme Court shifted its perspective and started to interpret the Due Process Clause as incorporating most of the protections in the Bill of Rights and applying them to the states. This process is known as selective incorporation.
Selective incorporation means that the Bill of Rights will extend to protect citizens from actions by state governments, not just the federal government. One of the first instances of this was in the landmark case of Gitlow v. New York in 1925, where the Supreme Court held that the Fourteenth Amendment extended the First Amendment’s provisions on freedom of speech and press to the states.
Since then, many rights have been incorporated. For example, the right to a jury trial, the right to protection from unreasonable searches and seizures, and the freedom of speech, among others, have been incorporated and now limit the actions of both the federal and state governments.
Not all rights have been incorporated, however. For instance, the Supreme Court has held that the Fifth Amendment’s requirement of a grand jury indictment in serious criminal cases doesn’t apply to the states. Therefore, selective incorporation is not an all-or-nothing process, but rather a selective one, in which each clause of the Bill of Rights is considered separately for incorporation.
Selective incorporation means that the Bill of Rights will continue to grow and adapt with changing societal norms and perspectives. As new legal challenges arise and as cases reach the Supreme Court, interpretations may shift, and more protections may be incorporated. This process ensures that the spirit of the Bill of Rights – safeguarding citizens’ fundamental freedoms – is upheld throughout the nation, regardless of the state in which one resides.
In conclusion, the practice of selective incorporation has extended the impact of the Bill of Rights to state governments, bolstering the protection of individual liberties across the United States. It ensures that the Bill of Rights is a living document, reflecting the evolving needs and values of the American society. While this process can lead to shifts and changes in the legal landscape, it is a testament to the resilient and adaptable nature of American constitutional law.
