Legal Definitions - selective incorporation

Selective incorporation is a legal doctrine used by the U.S. Supreme Court to apply certain fundamental rights from the Bill of Rights to the states. Before this doctrine, the Bill of Rights primarily restricted the federal government. However, following the ratification of the Fourteenth Amendment, particularly its Due Process Clause, the Supreme Court began, on a case-by-case basis, to determine which specific rights from the Bill of Rights are so fundamental to liberty and justice that they must also apply to state governments and their actions. This process is "selective" because the Court has not applied the entire Bill of Rights to the states all at once, but rather has incorporated individual rights over time through specific court decisions.

Here are some examples illustrating selective incorporation:

• Imagine a state passes a law making it illegal to criticize the governor in public. A citizen is arrested for speaking out against the governor at a town hall meeting. When the case reaches the Supreme Court, the Court would likely rule that the state law is unconstitutional because the First Amendment's protection of freedom of speech has been selectively incorporated to apply to the states. This means the state government cannot infringe upon this fundamental right, just as the federal government cannot.

• Consider a large city within a state that enacts a complete ban on all handguns for private citizens, arguing it's necessary for public safety. A resident challenges this ban, claiming it violates their right to own a firearm. The Supreme Court has previously held that the Second Amendment'sright to keep and bear arms is a fundamental right that applies to the states through selective incorporation. Therefore, the city's blanket ban would likely be struck down as unconstitutional because states and their municipalities must respect this incorporated right.

• Suppose a state police department routinely conducts searches of people's homes without obtaining a warrant or having probable cause, based on a state law that permits such actions. A homeowner whose property was searched without cause challenges this practice. The Supreme Court has selectively incorporated the Fourth Amendment's protection against unreasonable searches and seizures, meaning this federal standard now applies to state and local law enforcement. Consequently, the state law permitting warrantless searches without probable cause would be deemed unconstitutional, as state authorities must adhere to the Fourth Amendment's requirements.