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Selective Incorporation

What Does Selective Incorporation Mean?

Lindokuhle Mkhize

Lindokuhle Mkhize

14 August 20235 min read

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Selective incorporation

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    Selective incorporation is a legal concept that applies the protections of the Bill of Rights to state governments. Initially, the Bill of Rights was formed to regulate the federal government. This left individual states with the power to create their own laws. But, as society as we know it evolved, so did the need to protect human rights more effectively.

    This article explores selective incorporation and its connection to the Bill of Rights. This will help us understand its impact on small businesses.

    A brief history of the Bill of Rights

    When the US Constitution was drafted in 1787, there were concerns that it didn't protect our human rights. Congress proposed amendments known as the Bill of Rights to address these concerns. On December 15, 1791, the Bill of Rights became part of the Constitutional law. This was after approval by three-fourths of the states.

    The Bill of Rights comprises ten amendments, ensuring fundamental rights and protections.

    These amendments cover a range of human rights, such as:

    • First Amendment: freedom of speech, religion, and the press.
    • Second Amendment: the right to bear arms.
    • Fourth Amendment: protection from unreasonable searches and seizures.
    • Fifth Amendment & Sixth Amendment: the right to due process and a fair trial.
    • Eighth Amendment: protection against cruel and unusual punishment.

    Supreme Court cases and rulings

    This is where the selective incorporation theory used by the Supreme Court comes in. The theory determines whether some laws apply to certain states. Through major court cases, this process evolved over time rather than immediately. Depending on each case, the Court judged which rights benefited people's freedom.

    Iconic selective incorporation cases to know

    Over time, the Supreme Court used the Bill of Rights through notable landmark cases, such as:

    Marbury v. Madison (1803)

    This case established the Court's power of judicial review. The Supreme Court ruled that Marbury's commission was valid. But, the Court refused to use the powers of the Judiciary Act to make Madison deliver the papers. This marked the first time the Supreme Court ruled against a constitutional law.

    Brown v. Board of Education (1954)

    This case highlighted the power of the Fourteenth Amendment concerning racial desegregation. The Court ruled that separating children in public schools based on race was unfair. It meant the end of legalized racial segregation in US schools. The "separate but equal" principle outlined in 1896 was thus overruled.

    Gitlow v. New York (1925)

    In this case, the Supreme Court believed the freedom of speech and press clause applied to the states. This meant the states couldn't pass laws restricting freedom of speech.

    Due Process Clause

    The Supreme Court incorporated the Bill of Rights into states through various methods to hold proper governance. One of these ways was through the Due Process Clause. It stated that no state will deprive any person of life, liberty, or property without due process of law. The Court followed a selective incorporation approach to apply rights to each state.

    The rulings were case-by-case and carefully analyzed. This helped identify certain rights as vital to human freedom and justice, such as:

    • freedoms of speech
    • freedoms of religion
    • freedoms of assembly
    • freedoms of protection against unreasonable searches and seizures

    In instances involving selective incorporation, the Court also used the principle of due process analysis to rule if a specific right was necessary for society to function fairly.

    The debate over selective incorporation vs. total incorporation

    Constitutional law has long debated the pros and downsides of selective vs. entire incorporation. The factor in this argument is how far the freedoms guaranteed by the Bill of Rights in the United States Constitution should be applied to the states.

    Finding a balance between individual rights and the state's power is the argument between selective and total incorporation.

    While total incorporation aims to create a universal level of rights protection throughout all states, selective incorporation allows for flexibility in adjusting constitutional protections to shifting social norms. Both strategies attempt to limit state influence on personal freedoms, but they differ in terms of consequences.

    Ultimately, it's the Court's responsibility to interpret the Constitution. They determine which rights should pass into state law. Back in the day, the Court favored selective incorporation, adopting a case-by-case approach to apply rights.

    But, the continuing discussion raises the possibility that the Court's strategy may shift, for everything must evolve to keep up with the times.

    The Bill of Rights before the selective incorporation doctrine

    Before the incorporation doctrine was established, the rights and protections enumerated in the Bill of Rights applied solely to the federal government. The Bill of Rights, ratified in 1791, was initially intended to restrict the federal government's powers, not state governments.

    This meant that the individual states were free to enact their own laws and regulations, the Bill of Rights. As a result, there was variation in how these rights were respected across different states.

    Incorporating rights on all levels

    Now, selective incorporation serves as a powerful tool for protecting human rights. It's leveled the legal playing field as well! Extending the protections of the Bill of Rights to states creates a protective framework. Now, all citizens can exercise their freedoms and demand fair treatment under the law.

    Limits on state power

    Limits on state power in the Constitution prevent states from overstepping their authority. It also prevents states from infringing on individual rights. Key limits include:

    • The Supremacy Clause and the Federal Enumerated Powers
    • The Due Process and Equal Protection

    These limits ensure a balanced governance system and protect individual rights.

    Federal government

    Selective incorporation ensures that the federal government cannot violate someone's constitutional rights, no matter where they may stay in the US. The federal government's powers are limited by adopting these fundamental rights. This reduces possible abuses while maintaining freedom for all.

    Impacts on small businesses

    Now that we've come full circle, I'm sure you're wondering, how does this affect me as a small business owner?

    Well, small enterprises are essential to the American economy. The selective incorporation doctrine plays a part in regulating the economy. Small businesses have to respect constitutional rights in their dealings. This applies to staff, clients, and the government as private organizations.

    For example, discriminatory actions violate the equal protection provision of the Fourteenth Amendment. Any unfairness based on race, gender, religion, or handicap is punishable.

    Similarly, small business owners enjoy the right to free speech. This enables the expression of opinions and beliefs within the state laws and regulations. The selective incorporation doctrine ensures that small businesses uphold American ethics and principles. This benefit prevents state governments from trampling upon their rights.


    What is selective incorporation in simple terms?

    Selective incorporation describes the federal government's capacity to stop states from passing legislation that infringes on certain of the core constitutional rights of the American people.

    What's an example of selective incorporation?

    Let's consider the case of Gitlow v. New York (1925). In this case, the Supreme Court held that the First Amendment's freedom of speech and press clause applied to the states. This meant the states couldn't pass laws restricting the freedom of speech or press.

    Why is it called selective incorporation?

    Instead of integrating an amendment entirely simultaneously, the Supreme Court used selective incorporation, absorbing just some portions of some amendments.

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    Lindokuhle Mkhize

    Lindokuhle Mkhize


    Lindokuhle Mkhize, a skilled creative copywriter and content lead at Trademarkia, brings a wealth of experience in driving innovation and managing teams. With previous success in starting and growing the Innovation and Marketing department at her former creative agency, Lindokuhle boasts expertise in leadership and delivering compelling content. Based in South Africa, Lindokuhle's work focuses on key themes of creativity, effective communication, and strategic marketing.