What Is The Selective Incorporation Doctrine

The Selective Incorporation Doctrine: Protecting Your Rights from State Infringement

The Bill of Rights, a cornerstone of American freedom, guarantees fundamental rights like freedom of speech, religion, and the right to a fair trial. But what happens when a state government infringes upon these rights? The answer lies in a vital legal principle known as the Selective Incorporation Doctrine. This doctrine is the key mechanism through which the Supreme Court has applied the Bill of Rights to the states, ensuring that these fundamental protections are not just applicable to the federal government, but also to state and local governments.

What is the Selective Incorporation Doctrine?

The Selective Incorporation Doctrine is a constitutional law principle that allows the Supreme Court to apply specific provisions of the Bill of Rights to the states through the Fourteenth Amendment's Due Process Clause.

• The Bill of Rights: The first ten amendments to the U.S. Constitution, guaranteeing fundamental rights and freedoms.
• The Fourteenth Amendment: Ratified in 1868, it includes the Due Process Clause, which prohibits states from depriving any person of life, liberty, or property, without due process of law.
• Incorporation: The process of applying the Bill of Rights to the states through the Fourteenth Amendment.
• Selective: The Supreme Court decides which rights are incorporated on a case-by-case basis, rather than incorporating the entire Bill of Rights at once.

In essence, the Selective Incorporation Doctrine acts as a bridge, extending the protections of the Bill of Rights to shield individuals from potential abuses by state governments. It's not a blanket application of every single right, but rather a careful, considered approach focusing on those rights deemed "fundamental to the American scheme of justice."

The Historical Context: Before Incorporation

To understand the significance of Selective Incorporation, it's crucial to understand the legal landscape before its widespread application. Initially, the Bill of Rights was understood to apply only to the federal government. This interpretation stemmed from the Supreme Court's decision in Barron v. Baltimore (1833).

In Barron v. Baltimore, the city of Baltimore, while expanding its infrastructure, deposited sand and gravel near John Barron's wharf, rendering it commercially useless. Barron sued the city, arguing that this action deprived him of his property without just compensation, violating the Fifth Amendment. The Supreme Court, under Chief Justice John Marshall, ruled that the Bill of Rights applied only to the federal government and not to the states.

Chief Justice Marshall reasoned that the Constitution was established by the people of the United States for their own government, not for the government of the individual states. Therefore, the Bill of Rights, as a limitation on the powers of the federal government, did not apply to the states.

This decision had significant implications. It meant that, for much of the 19th century, state governments were largely free from the constraints imposed by the Bill of Rights. States could, in theory, infringe upon rights such as freedom of speech, religion, and the press without violating the U.S. Constitution. This created a situation where the level of individual rights protection varied significantly from state to state.

The Rise of Incorporation: The Fourteenth Amendment as a Catalyst

The landscape began to shift with the ratification of the Fourteenth Amendment in 1868, following the Civil War. This amendment aimed to protect the rights of newly freed slaves, but its broad language had far-reaching consequences. The key clause for our discussion is the Due Process Clause, which states that no state shall "deprive any person of life, liberty, or property, without due process of law."

The Fourteenth Amendment opened the door for the Supreme Court to reconsider the relationship between the Bill of Rights and the states. The question became: does the Due Process Clause of the Fourteenth Amendment incorporate any of the rights guaranteed in the Bill of Rights, thereby making them applicable to the states?

Early interpretations of the Fourteenth Amendment were narrow. In The Slaughter-House Cases (1873), the Supreme Court initially limited the scope of the Fourteenth Amendment, holding that it primarily protected the rights of national citizenship and did not significantly alter the balance of power between the federal government and the states.

However, over time, the Court began to adopt a more expansive view of the Fourteenth Amendment, paving the way for the Selective Incorporation Doctrine.

The Selective Incorporation Doctrine Takes Shape: Key Cases

The development of the Selective Incorporation Doctrine was a gradual process, marked by a series of landmark Supreme Court cases. Here are some key milestones:

• Chicago, Burlington & Quincy Railroad Co. v. City of Chicago (1897): This case marked the first instance of the Supreme Court incorporating a right from the Bill of Rights against the states. The Court held that the Fifth Amendment's guarantee of just compensation for the taking of private property for public use applied to the states through the Fourteenth Amendment. This established the principle that the Due Process Clause could protect individuals from state actions that violated fundamental rights.

• Gitlow v. New York (1925): This case involved Benjamin Gitlow, who was convicted of violating New York's criminal anarchy law for distributing socialist pamphlets. While the Court ultimately upheld Gitlow's conviction, it made a crucial statement: it assumed that freedom of speech and freedom of the press, protected by the First Amendment, were among the fundamental personal rights and "liberties" protected by the Due Process Clause of the Fourteenth Amendment from impairment by the states. This case was pivotal in applying the First Amendment to the states.

• Near v. Minnesota (1931): This case further solidified the incorporation of freedom of the press. The Court struck down a Minnesota law that allowed for the suppression of scandalous and defamatory newspapers, holding that it violated the First Amendment's guarantee of freedom of the press, which was applicable to the states through the Fourteenth Amendment.

• Palko v. Connecticut (1937): This case established the "fundamental rights" test, which became central to the Selective Incorporation Doctrine. The Court articulated that rights would only be incorporated if they were "of the very essence of a scheme of ordered liberty" and "fundamental principles of liberty and justice which lie at the base of all our civil and political institutions." In Palko, the Court declined to incorporate the Fifth Amendment's protection against double jeopardy, arguing that it was not a fundamental right. While Palko's specific holding on double jeopardy was later overturned, the "fundamental rights" test remained influential.

• Duncan v. Louisiana (1968): This case involved Gary Duncan, who was convicted of simple battery and sentenced to 60 days in jail and a $150 fine. He was denied a jury trial, which was guaranteed by the Sixth Amendment. The Supreme Court reversed Duncan's conviction, holding that the right to a jury trial in criminal cases is fundamental to the American scheme of justice and therefore applicable to the states through the Fourteenth Amendment. This case reaffirmed the importance of jury trials and further solidified the Selective Incorporation Doctrine.

Through these and other cases, the Supreme Court gradually incorporated many of the provisions of the Bill of Rights, protecting individuals from state infringement on their fundamental freedoms.

How Does Selective Incorporation Work? The "Fundamental Rights" Test

The Selective Incorporation Doctrine hinges on the "fundamental rights" test, which, as mentioned earlier, was articulated in Palko v. Connecticut. This test asks whether a particular right is fundamental to the American scheme of justice and essential to a fair and ordered society.

To determine whether a right is fundamental, the Court considers several factors:

• Historical Tradition: Is the right deeply rooted in the nation's history and traditions?
• Contemporary Values: Is the right considered essential to liberty and justice in modern American society?
• Necessity for Fairness: Is the right necessary to ensure a fair and reliable judicial process?

If the Court determines that a right meets these criteria, it will hold that the right is incorporated and applicable to the states through the Fourteenth Amendment's Due Process Clause.

It's important to note that the "fundamental rights" test is not a static concept. The Court's interpretation of what constitutes a fundamental right can evolve over time, reflecting changes in societal values and legal understanding.

Which Rights Have Been Incorporated?

Over the years, the Supreme Court has incorporated most of the key provisions of the Bill of Rights. Here is a summary of the incorporated rights:

• First Amendment:
  • Freedom of Speech (Gitlow v. New York, 1925)
  • Freedom of the Press (Near v. Minnesota, 1931)
  • Freedom of Religion (Cantwell v. Connecticut, 1940)
  • Freedom of Assembly (De Jonge v. Oregon, 1937)
• Second Amendment:
  • Right to Bear Arms (McDonald v. City of Chicago, 2010)
• Fourth Amendment:
  • Protection against unreasonable searches and seizures (Mapp v. Ohio, 1961)
  • Exclusionary Rule (evidence obtained illegally cannot be used in court) (Mapp v. Ohio, 1961)
• Fifth Amendment:
  • Protection against self-incrimination (Malloy v. Hogan, 1964)
  • Protection against double jeopardy (Benton v. Maryland, 1969)
  • Right to just compensation for the taking of private property (Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 1897)
• Sixth Amendment:
  • Right to counsel in criminal cases (Gideon v. Wainwright, 1963)
  • Right to a speedy and public trial (Klopfer v. North Carolina, 1967)
  • Right to confront witnesses (Pointer v. Texas, 1965)
  • Right to compulsory process for obtaining witnesses (Washington v. Texas, 1967)
  • Right to a jury trial in criminal cases (Duncan v. Louisiana, 1968)
• Eighth Amendment:
  • Protection against cruel and unusual punishment (Robinson v. California, 1962)

Rights That Have Not Been Incorporated

While most of the Bill of Rights has been incorporated, a few provisions have not yet been applied to the states. These include:

• Third Amendment: Protection against the quartering of soldiers in private homes.
• Fifth Amendment: Right to indictment by a grand jury in criminal cases.
• Seventh Amendment: Right to a jury trial in civil cases.
• Eighth Amendment: Protection against excessive bail and fines.

The reason these rights have not been incorporated is that the Supreme Court has not yet found them to be "fundamental" to the American scheme of justice. It's important to remember that the process of incorporation is ongoing, and the Court could potentially incorporate these rights in the future.

Total Incorporation vs. Selective Incorporation: A Debate

Throughout the development of the Incorporation Doctrine, there has been a debate between two main approaches: total incorporation and selective incorporation.

• Total Incorporation: This view argues that the Fourteenth Amendment's Due Process Clause incorporates all of the provisions of the Bill of Rights, making them all applicable to the states. Justice Hugo Black was a prominent advocate of this view. Proponents of total incorporation argue that it provides a clear and consistent standard for protecting individual rights and avoids the subjective judgments involved in selective incorporation.

• Selective Incorporation: As we've discussed, this is the approach that the Supreme Court has adopted. It argues that the Fourteenth Amendment incorporates only those rights that are "fundamental" to the American scheme of justice. The Court decides which rights are fundamental on a case-by-case basis. Proponents of selective incorporation argue that it allows the Court to consider the specific context and implications of incorporating each right, and that it avoids imposing a rigid and potentially inappropriate set of federal standards on the states.

The debate between total and selective incorporation highlights the ongoing tension between federalism and individual rights. Total incorporation would give the federal government a greater role in protecting individual rights from state infringement, while selective incorporation allows the states more flexibility to tailor their laws to local conditions.

The Significance and Impact of Selective Incorporation

The Selective Incorporation Doctrine has had a profound impact on American law and society. It has:

• Expanded Individual Rights: By applying the Bill of Rights to the states, the doctrine has significantly expanded the protection of individual rights and liberties.
• Promoted Equality: It has helped to ensure that individuals across the country enjoy the same fundamental rights, regardless of where they live.
• Shaped Constitutional Law: It has been a central issue in constitutional law for much of the 20th and 21st centuries, shaping the Court's interpretation of the Fourteenth Amendment and the Bill of Rights.
• Impacted Criminal Justice: The incorporation of rights like the right to counsel, the right to remain silent, and the protection against unreasonable searches and seizures has fundamentally altered the landscape of criminal justice in the United States.

In conclusion, the Selective Incorporation Doctrine is a cornerstone of American constitutional law. It has played a vital role in protecting individual rights and ensuring that the guarantees of the Bill of Rights apply to all levels of government. While the process of incorporation has been gradual and sometimes controversial, it has undeniably strengthened the fabric of American liberty. It serves as a continuing testament to the enduring relevance and adaptability of the U.S. Constitution in safeguarding the freedoms of its citizens.