3.7  Selective Incorporation

Selective incorporation is the process by which the Supreme Court has interpreted the Fourteenth Amendment to make most of the Bill of Rights applicable to state governments. This process began in the 1920s.  Before the 1920s, the Supreme Court believed that the Bill of Rights only applied to the federal government, not the states. For example, in United States v. Cruikshank (1876), the Supreme Court ruled that the First and Second Amendments did not apply to state governments.

Incorporation is the doctrine by which portions of the Bill of Rights have been made applicable to the states. When the Bill of Rights was ratified, the courts held that its protections extended only to the actions of the federal government and that the Bill of Rights did not place limitations on the authority of the state and local governments. However, the post–Civil War era, beginning in 1865 with the Thirteenth Amendment, which declared the abolition of slavery, gave rise to the incorporation of other amendments, applying more rights to the states and people over time. Gradually, various portions of the Bill of Rights have been held to be applicable to state and local governments by incorporation via the Due Process Clause of the Fourteenth Amendment of 1868.

Prior to the ratification of the Fourteenth Amendment and the development of the incorporation doctrine, the Supreme Court in 1833 held in Barron v. Baltimore that the Bill of Rights applied only to the federal, but not any state, governments. Even years after the ratification of the Fourteenth Amendment, the Supreme Court in United States v. Cruikshank (1876) still held that the First and Second Amendment did not apply to state governments. However, beginning in the 1920s, a series of Supreme Court decisions interpreted the Fourteenth Amendment to "incorporate" most portions of the Bill of Rights, making these portions, for the first time, enforceable against the state governments.

The Court has applied to the states the First Amendment’s guarantee of the free exercise of religion, the prohibition on government establishment of religion, the rights of freedom of speech, freedom of the press, freedom of assembly and the right to petition the government. The Court has also incorporated against the states the Second Amendment right to keep and bear arms and the Fourth Amendment right to be free from unreasonable searches and seizures. Numerous Supreme Court cases have applied provisions of the Fifth and Sixth Amendments to restrict state government action. In addition, the Court has applied to the states the Eighth Amendment’s restrictions on excessive bail, excessive fines, and cruel and unusual punishments.

By contrast, the Court has declined to apply to the states the Fifth Amendment’s right to a grand jury indictment  and the Seventh Amendment’s guarantee of a jury trial in civil cases in which the amount in controversy exceeds twenty dollars. The Court has had no occasion to decide whether the states must comply with the Third Amendment’s limitations on quartering troops in homes. The Ninth and Tenth Amendments do not expressly enumerate separate substantive rights for protection, though the Court has cited the Ninth Amendment in litigation against a state.