Selective Incorporation Overview
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• Federalist system –
• National government with specified powers
• State governments retained the powers not
delegated to the central government
• Wording of Bill or Rights prevented rights
contained in them from being applied to the
states
• 14th Amendment created formal application
of Bill of Rights to states
• Created selective incorporation concept
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• Selective Incorporation
– Supreme Court decides on case by case basis
which provisions apply to the states through the
due process clause
Constitutional Convention
• Original plan for Constitution would have
created a unitary government
• Delegates initially did not think a Bill of
Rights was necessary
• During ratification process many states
called for a Bill of Rights
– Many States had one in their constitutions
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Bill of Rights
• Originally only applied to federal
government
– Intent was to limit national power not state
• Madison initially proposed amendment
applying certain rights to states – Congress
did not include it in those sent to states for
ratification
• Barron v. Baltimore – Marshall court
– Did not apply federal bill of rights to states
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14th Amendment
• Privileges and Immunities clause
• 14th Amendment passed to protect rights of
recently freed slaves, overturn 3/5th’s
clause, punish Confederates, and repudiate
Civil War debt of Confederate states.
• 1st Section
– Privilege and Immunities clause
– Due process clause
– Equal protection clause
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• Slaughterhouse cases
– Louisiana
– Decision of the court virtually eliminated
privileges and immunities clause
• Gitlow v. New York
– Applied 1st Amendment rights to state of New
York
• Total Incorporation view
– Difficulties in application to states
• Selective Incorporation view
– Court would decide on case by case basis which
rights in the Bill of Rights to apply to the States
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• Palko v. Connecticut 1937
– Key selective incorporation case
– Specifically rejected Total Incorporation
– Established standard guide for future Selective
Incorporation
• Any right found “found to be implicit in the concept of ordered
liberty” and “so rooted in the traditions and conscience of our
people as to be ranked as fundamental” would be applied to the
states.
• After this case many amendments were
incorporated to apply to the States in a series of
decisions
– Second Amendment was one not selectively
incorporated to the States as well as some others.
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Warren Court
• Engle v. Vitale - 1962
– State sponsored prayer
• Mapp v. Ohio - 1961
– Application of 4th, 5th, and 6th amendments to
the states
– Exclusionary rule
• Gideon v. Wainwright - 1963
– Private counsel
• Miranda v. Arizona – 1966
– Rights prior to interrogation
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• Selective Incorporation has helped attain
promises contained in Preamble and has had
lasting and dramatic effects on states and
local governments
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