What Is Selective Incorporation Of The Bill Of Rights

Let's delve into the fascinating and crucial topic of selective incorporation of the Bill of Rights. This legal doctrine has profoundly shaped the relationship between the federal government and the states, ensuring that fundamental rights are protected at all levels. Understanding selective incorporation is essential for grasping the nuances of American constitutional law and its impact on everyday life.

Introduction

Imagine a scenario where the freedoms you cherish – the right to speak your mind, practice your religion, or defend yourself in court – are only guaranteed by the federal government but not necessarily by your state. This was, to a large extent, the reality in the United States for many years. The Bill of Rights, initially designed to limit the power of the federal government, did not automatically apply to the states. This changed dramatically through a process called selective incorporation. Selective incorporation is a constitutional doctrine through which selected provisions of the Bill of Rights are made applicable to the states through the Due Process clause of the Fourteenth Amendment. This means that state governments, just like the federal government, cannot infringe upon these fundamental rights.

The Genesis: Understanding the Original Intent

The Bill of Rights, comprising the first ten amendments to the U.S. Constitution, was ratified in 1791. Its primary purpose was to safeguard individual liberties from potential overreach by the newly formed federal government. However, the question arose: Did these protections also extend to actions by state governments? The Supreme Court addressed this issue early on in the landmark case of Barron v. Baltimore (1833). John Barron, a wharf owner in Baltimore, argued that the city's construction projects had diverted streams, causing sediment buildup that rendered his wharf unusable and violated his Fifth Amendment right to just compensation for private property taken for public use.

Chief Justice John Marshall, writing for the Court, held that the Bill of Rights applied only to the federal government, not to state governments. Marshall reasoned that the Constitution was established by and for the federal government, and therefore, the amendments were intended to limit only federal power. This decision set a precedent that would stand for nearly a century, leaving states largely free to regulate individual rights without federal constitutional constraints.

The Fourteenth Amendment: A Turning Point

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 and ensure equal treatment under the law. Section 1 of the Fourteenth Amendment includes several key clauses:

• The Citizenship Clause: Grants citizenship to all persons born or naturalized in the United States.
• The Privileges or Immunities Clause: Prohibits states from making or enforcing any law which shall abridge the privileges or immunities of citizens of the United States.
• The Due Process Clause: Prohibits states from depriving any person of life, liberty, or property, without due process of law.
• The Equal Protection Clause: Prohibits states from denying to any person within its jurisdiction the equal protection of the laws.

While the Fourteenth Amendment seemed to offer a pathway to apply the Bill of Rights to the states, the Supreme Court's initial interpretation was narrow. In the Slaughter-House Cases (1873), the Court severely limited the scope of the Privileges or Immunities Clause, effectively rendering it useless for incorporating the Bill of Rights. The Court held that the clause only protected rights derived from federal citizenship, not rights derived from state citizenship. This decision significantly hampered early efforts to use the Fourteenth Amendment to extend Bill of Rights protections to the states.

The Gradual Incorporation: A Step-by-Step Approach

Despite the setback in the Slaughter-House Cases, the Due Process Clause of the Fourteenth Amendment gradually became the primary vehicle for selective incorporation. This process wasn't immediate or comprehensive; instead, the Supreme Court considered each right in the Bill of Rights on a case-by-case basis, determining whether it was so fundamental that it should apply to the states.

• Early Incorporation: The first significant incorporation case was Chicago, Burlington & Quincy Railroad Co. v. City of Chicago (1897). The Court held that the Fifth Amendment's requirement for just compensation when private property is taken for public use applied to the states through the Due Process Clause. This marked the beginning of the incorporation doctrine.

• The "Fundamental Rights" Standard: The Court developed the concept of "fundamental rights" to guide the incorporation process. These were rights deemed essential to the American scheme of justice and necessary for a fair and ordered society. If a right was considered fundamental, the Court would incorporate it, meaning it would apply to the states.

• Landmark Cases: The twentieth century witnessed a series of landmark cases that selectively incorporated various provisions of the Bill of Rights:

  • Gitlow v. New York (1925): Incorporated the First Amendment's freedom of speech.
  • Near v. Minnesota (1931): Incorporated the First Amendment's freedom of the press.
  • Powell v. Alabama (1932): Incorporated the Sixth Amendment's right to counsel in capital cases.
  • Cantwell v. Connecticut (1940): Incorporated the First Amendment's free exercise of religion.
  • Mapp v. Ohio (1961): Incorporated the Fourth Amendment's protection against unreasonable searches and seizures.
  • Gideon v. Wainwright (1963): Incorporated the Sixth Amendment's right to counsel in all felony cases.
  • Miranda v. Arizona (1966): Incorporated the Fifth Amendment's protection against self-incrimination.
  • Benton v. Maryland (1969): Incorporated the Fifth Amendment's protection against double jeopardy.

The Debate Over Total Incorporation vs. Selective Incorporation

Throughout the incorporation process, a debate emerged between two main viewpoints: total incorporation and selective incorporation.

• Total Incorporation: Proponents of total incorporation argued that the Fourteenth Amendment's Due Process Clause was intended to apply all provisions of the Bill of Rights to the states. Justice Hugo Black was a leading advocate of this view. He believed that the Fourteenth Amendment was meant to ensure that state governments could not infringe upon any of the rights guaranteed by the Bill of Rights.

• Selective Incorporation: This view, which ultimately prevailed, holds that only those rights deemed fundamental should be incorporated. The Court, under various justices, determined which rights met this threshold on a case-by-case basis. This approach allowed the Court to consider the specific context and implications of applying each right to the states.

The Supreme Court ultimately rejected total incorporation, favoring the selective incorporation approach. This allowed for a more nuanced and flexible application of the Bill of Rights to the states, taking into account the unique circumstances and interests of state governments.

Unincorporated Rights: What's Left Out?

While many provisions of the Bill of Rights have been incorporated, some remain unincorporated, meaning they do not apply to the states. These include:

• The Third Amendment: Protection against the quartering of soldiers in private homes.
• The Fifth Amendment's Grand Jury Clause: Requirement of a grand jury indictment for capital or infamous crimes.
• The Seventh Amendment: Right to a jury trial in civil cases.
• The Eighth Amendment's Excessive Fines Clause: Protection against excessive fines (though some argue this is implicitly incorporated).

The reason these rights remain unincorporated is largely due to the Court's assessment that they are not fundamental to the American scheme of justice in the same way as rights like freedom of speech or the right to counsel. It's important to note that even unincorporated rights may be protected by state constitutions or statutes.

The Impact of Selective Incorporation

Selective incorporation has had a profound impact on American law and society. It has:

• Enhanced Individual Liberties: By applying key provisions of the Bill of Rights to the states, selective incorporation has significantly enhanced individual liberties and protections against government overreach at both the federal and state levels.
• Promoted Uniformity: It has created a greater degree of uniformity in the protection of rights across the country. State governments are now bound by the same constitutional standards as the federal government in many areas.
• Fueled Litigation: The incorporation doctrine has been the basis for countless lawsuits challenging state laws and practices that allegedly violate fundamental rights.
• Shaped the Criminal Justice System: Cases like Mapp v. Ohio and Miranda v. Arizona have dramatically altered the landscape of criminal procedure, ensuring that individuals are afforded key protections against unlawful searches and seizures and self-incrimination.

Criticisms of Selective Incorporation

Despite its significant contributions, selective incorporation has faced criticism from various perspectives:

• Judicial Activism: Some critics argue that selective incorporation represents judicial activism, with the Supreme Court essentially rewriting the Constitution by selectively applying its provisions to the states. They argue that the Court should defer to the states on matters of individual rights.
• Federalism Concerns: Others argue that incorporation undermines federalism by eroding the autonomy of state governments. They believe that states should have the freedom to experiment with different approaches to protecting individual rights.
• Inconsistency: Some scholars point out that the selective incorporation process has been inconsistent, with the Court sometimes providing weak justifications for incorporating certain rights while leaving others unincorporated.
• Limited Scope: Critics argue that selective incorporation only goes so far, as it does not address issues of economic inequality or social justice that are not explicitly covered by the Bill of Rights.

The Future of Incorporation

The process of selective incorporation is ongoing, although it has slowed considerably in recent decades. The Supreme Court has been less active in incorporating new rights, and the focus has shifted to interpreting and applying the rights that have already been incorporated.

Several potential issues could shape the future of incorporation:

• The Second Amendment: The Supreme Court's decision in McDonald v. City of Chicago (2010) incorporated the Second Amendment right to bear arms for self-defense to the states. However, the scope of this right and the extent to which states can regulate firearms remain contentious issues.
• Unincorporated Rights: There is ongoing debate about whether other provisions of the Bill of Rights, such as the Eighth Amendment's Excessive Fines Clause, should be incorporated.
• New Technologies: Emerging technologies, such as facial recognition and artificial intelligence, raise new questions about the scope of existing constitutional rights, such as the Fourth Amendment's protection against unreasonable searches and seizures.

Conclusion

Selective incorporation has been a transformative process in American constitutional law. It has ensured that fundamental rights, enshrined in the Bill of Rights, are protected against infringement by state governments. While the process has faced criticism and debate, its impact on individual liberties and the balance of power between the federal government and the states is undeniable.

Understanding selective incorporation is crucial for anyone interested in American law, history, or political science. It provides insight into the ongoing evolution of constitutional rights and the challenges of balancing individual liberties with the interests of government. As society evolves and new challenges emerge, the principles of selective incorporation will continue to shape the legal landscape and the protection of fundamental rights in the United States. How do you think selective incorporation has impacted your daily life, and what rights do you believe should be considered for future incorporation?