Malcolm Rivera
Selective incorporation is a legal doctrine that ensures constitutional rights are protected in any state. The doctrine is based on the interpretation that the Bill of Rights is applied to state laws via the Due Process Clause of the Fourteenth Amendment. The Fourteenth Amendment, ratified in 1868, states that no state can take away liberty without due process of law. The Supreme Court has held that most provisions of the Bill of Rights apply to the states, and it uses the language of incorporation to apply these rights on a case-by-case basis. This interpretation of the law is known as the doctrine of selective incorporation, which ensures that Bill of Rights provisions apply in every state.
| Characteristics | Values |
|---|---|
| Basis | Fourteenth Amendment's Due Process Clause |
| Application | Case-by-case |
| Scope | First 10 Amendments (Bill of Rights) |
| Purpose | Limit state regulations infringing on civil rights and liberties |
| Rights | Freedom of speech, right to remain silent, right to indictment by a grand jury, protection against double jeopardy, protection against self-incrimination, protection against taking property without due compensation, right to a speedy trial, right to a public trial, right to an impartial jury, right to notice of accusations, right to confront hostile witnesses, right to compulsory process to obtain witness testimony, right to confront favorable witnesses, equal protection, due process |
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The Fourteenth Amendment
> All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
There is contention surrounding the Fourteenth Amendment and whether it should incorporate any substantive rights. Some Supreme Court justices have advocated for total incorporation, while others have argued for selective incorporation.
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Due Process Clause
The Due Process Clause of the Fourteenth Amendment is integral to the concept of selective incorporation. The Fourteenth Amendment, ratified in 1868, states that:
> No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The Supreme Court has interpreted this to mean that the Bill of Rights can be applied to state laws via the Due Process Clause of the Fourteenth Amendment. This is known as selective incorporation, where the Supreme Court decides on a case-by-case basis that certain provisions of the Bill of Rights apply to the states. This interpretation ensures that the Bill of Rights provisions apply in every state.
The Due Process Clause of the Fourteenth Amendment has been used in numerous Supreme Court decisions to apply particular provisions of the Bill of Rights to the states. For example, in Mapp v. Ohio (1961), Klopfer v. North Carolina (1967), Duncan v. Louisiana (1968), and Baldwin v. New York (1970), the Supreme Court held that certain rights were fundamental and thus incorporated by the Fourteenth Amendment.
The Supreme Court has generally adopted the language of incorporation, moving away from earlier cases where rights were applied against the states because they were considered fundamental. The Court's modern doctrine of selective incorporation holds that most provisions of the Bill of Rights apply to the states, limiting state government action.
The Due Process Clause of the Fourteenth Amendment is a crucial tool for citizens seeking to protect their constitutional rights against state infringements. It allows the Supreme Court to selectively incorporate specific amendments or portions of the Bill of Rights, ensuring that state laws and policies do not violate the civil liberties and freedoms guaranteed by the Constitution.
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Bill of Rights
The Bill of Rights is another name for the first 10 amendments to the US Constitution. These amendments establish fundamental rights. When the Bill of Rights was added to the Constitution in 1791, its protections only applied to the federal government, not state governments.
The Fourteenth Amendment, ratified in 1868, extended equal protection and due process to all persons in the United States. The Amendment states that no state can take away “liberty” without due process of law. The Supreme Court has held that most provisions of the Bill of Rights apply to the states through the Fourteenth Amendment's Due Process Clause.
The Supreme Court has adopted the doctrine of selective incorporation of the Bill of Rights against the states. This means that the Court has held on a case-by-case basis that many of the provisions of the Bill of Rights limit state government action. For example, in Miranda v. Arizona (1966), the Court held that law enforcement must advise persons in custody of their right to remain silent.
Some justices have advocated for total incorporation of the Bill of Rights, arguing that the Fourteenth Amendment's due process clause should apply to the entire Bill of Rights. However, other justices have argued that incorporating all protections would place an undue burden on states. Ultimately, the Supreme Court adopted the selective incorporation doctrine in the 1937 case of Palko v. Connecticut.
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Supreme Court
The Supreme Court adopted the selective incorporation doctrine in the 1937 case of Palko v. Connecticut. This decision established a selective incorporation definition and guidelines for applying it. The doctrine is a constitutional law principle that refers to the way selected provisions of the Bill of Rights are applied to each state through the equal protection clause of the 14th Amendment. The 14th Amendment, ratified in 1868, states that all persons born or naturalized in the United States are citizens and that no state shall make or enforce any law that abridges the privileges or immunities of citizens.
The Supreme Court's interpretation of the 14th Amendment's Due Process Clause has been central to the selective incorporation of the Bill of Rights. The Court has held that most provisions of the Bill of Rights apply to the states through this clause. This interpretation allows the Court to protect citizens from state infringements on Constitutional rights, such as freedom of speech. For example, in Miranda v. Arizona (1966), the Court held that law enforcement must advise persons in custody of their right to remain silent, incorporating the Fifth Amendment's protection against self-incrimination.
The selective incorporation doctrine has been used by the Supreme Court to apply certain protections in the Bill of Rights to state criminal procedures on a case-by-case basis. For instance, in Mapp v. Ohio (1961), Klopfer v. North Carolina (1967), and Duncan v. Louisiana (1968), the Court held that particular provisions of the Bill of Rights applied to the states through the Fourteenth Amendment's Due Process Clause.
In some earlier cases, the Court held that certain rights applied against the states because the rights at issue were fundamental, not merely because they were named in the Bill of Rights and incorporated by the Fourteenth Amendment. For example, in Powell v. Alabama (1932), the Court held that the right to counsel applied against the state because it was a fundamental right.
The Supreme Court's adoption of the selective incorporation doctrine has been influential in shaping constitutional rights in the United States, ensuring that the Bill of Rights protections apply in every state.
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State laws
The selective incorporation doctrine is a legal principle that ensures that the Bill of Rights' protections apply to state laws. The Bill of Rights, comprising the first ten amendments to the US Constitution, establishes fundamental rights. The selective incorporation doctrine is based on the Fourteenth Amendment's Due Process Clause, which states that no state can take away a person's "liberty" without due process of law.
The Supreme Court adopted the selective incorporation doctrine in the 1937 case of Palko v. Connecticut. This decision established a selective incorporation definition and guidelines for its application. The Court held that the Due Process Clause of the Fourteenth Amendment incorporates certain parts of certain amendments, rather than entire amendments at once. This means that the Court decides on a case-by-case basis which portions of the Bill of Rights apply to states.
The selective incorporation doctrine has been used by the Supreme Court to protect citizens from state infringements on their constitutional rights. For example, in Miranda v. Arizona (1966), the Court held that law enforcement must advise persons in custody of their right to remain silent. This was based on the protection against self-incrimination in the Fifth Amendment, which the Court incorporated into state law through its decision.
Another example is Gitlow v. New York (1925), which legally established selective incorporation on the state level by extending First Amendment protections for free speech. Cantwell v. Connecticut (1940) further strengthened protections for religious speech.
In some cases, the Supreme Court has held that certain rights apply to states because the rights at issue are fundamental, rather than because they are named in the Bill of Rights and incorporated by the Fourteenth Amendment. For example, in Powell v. Alabama (1932), the Court held that the right to counsel applied against the state because it was a fundamental right.
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Frequently asked questions
Selective incorporation is a legal doctrine that ensures constitutional rights are protected in any state.
The Bill of Rights was added to the Constitution in 1791, but its protections only applied to the federal government. In 1868, the Fourteenth Amendment was ratified, extending equal protection and due process to all persons in the United States. Citizens then began to seek the Supreme Court's review of state laws and procedures they believed infringed on rights under the Bill of Rights.
The Fourteenth Amendment's Due Process Clause states that no state can take away "liberty" without due process of law. This means that if a state law infringes on a "liberty" protected by the Bill of Rights, that amendment is incorporated into the states.
The Supreme Court uses selective incorporation on a case-by-case basis to apply certain protections in the Bill of Rights to state laws and procedures. For example, in Miranda v. Arizona (1966), the Supreme Court held that law enforcement must advise persons in custody of their right to remain silent.
The "selective" part comes from the fact that the Supreme Court incorporates these rights on a case-by-case basis, deciding which portions of the Bill of Rights apply to states.
