3.7 - Selective Incorporation
The 14th Amendment and Due Process
Incorporation hinges on the 14th Amendment's Due Process Clause (ratified 1868), which says no state can deprive any person of "life, liberty, or property, without due process of law." This mirrors the Fifth Amendment, but it applies to state governments instead of the national government.
The Original Limit on the Bill of Rights
Before this interpretation shifted, the Bill of Rights only restrained the federal government.
- The First Amendment literally begins "Congress shall make no law," implying no restriction on states.
- Barron v. Baltimore (1833): the Court ruled the Bill of Rights only applied to the federal government, meaning states could freely violate things like free speech, gun rights, or protections against cruel punishment.
The Birth of Incorporation
The shift hinges on the word "Liberty" in the 14th Amendment's Due Process Clause.
Gitlow v. New York (1925): a man arrested by New York for promoting communism claimed First Amendment protection.
- The ruling: the Court held that free speech is fundamental to Liberty, and since the 14th Amendment bars states from depriving anyone of Liberty, states can no longer take away fundamental freedoms like speech.
- Incorporation: applying the Bill of Rights to the states, binding them the same way the federal government is bound.
- Gitlow still lost: the Court upheld his conviction, since it found his writings dangerous enough to punish. But the principle that the First Amendment limits the states stuck, and that's why the case matters.
Selective Incorporation and Timeline
Called "selective" because it happened case by case, not all at once.
- This has been an ongoing process since 1925. For example, the right to bear arms was incorporated in 2010 (McDonald v. Chicago), and protection against excessive fines in 2019 (Timbs v. Indiana).
- Not everything is incorporated: a few protections still only limit the federal government, like the Third Amendment, the Fifth Amendment's right to a grand jury, and the Seventh Amendment's right to a jury in civil cases.
- Required cases that show incorporation at work:
- Gideon v. Wainwright (1963): incorporated the Sixth Amendment right to a lawyer, so states must provide one to poor felony defendants (Topic 3.8).
- Engel v. Vitale (1962) and Wisconsin v. Yoder (1972): both struck down state actions under the First Amendment's religion clauses, which only works because those clauses had already been incorporated (Free Exercise in 1940, Establishment in 1947). See Topic 3.2.
- McDonald v. Chicago (2010): incorporated the Second Amendment (below).
Shifting the Balance of Power
- States get weaker: they can no longer restrict rights like free speech or gun ownership.
- Federal power grows: especially the judiciary, since courts are the ones forcing states to comply with the Bill of Rights.
McDonald v. Chicago (2010)
A modern example of incorporation in action.
- D.C. v. Heller (2008) established an individual right to bear arms, but only protected people from the federal government, states could still restrict gun rights.
- McDonald v. Chicago incorporated the Second Amendment, meaning states can no longer take away the right to bear arms either.
- The ruling: 5-4, the Second Amendment applies to the states through the 14th Amendment's Due Process Clause, so Chicago's handgun ban fell (facts in Topic 3.5).
- Why it matters: like Gitlow, it shows selective incorporation limiting what states can do and shifting power toward the federal courts, which can now strike down state gun laws that go too far.
Big picture
Selective incorporation works like a one-way ratchet, gradually applying more of the Bill of Rights to the states through the "Liberty" language in the 14th Amendment. Starting in 1925 and continuing today, this has steadily shifted power away from states and toward the federal judiciary, as seen in McDonald v. Chicago incorporating the right to bear arms.