“Selective incorporation” is one of the most important concepts in AP US Government in terms of understanding both civil liberties and the relation between the federal and state governments.  The term appears at least eight times in the APGOPO Course Description.

“Selective incorporation” refers to the process that the Supreme Court uses to determine if a liberty is so fundamental to our freedom that the US Constitution’s 14^thAmendment due process clause would prohibit a state from unduly infringing upon that liberty. The easiest way to understand selective incorporation is to break this description into its component parts.

First,it is important to understand the reference to“liberty”. Think of liberty in the context of civil libertieswhich are defined by the APGOPO Course Description as “constitutionally established guarantees and freedoms that protect citizens, opinions, and property against arbitrary government interference.”  Civil liberties are protections AGAINST government encroachment on individual freedom, and are an essential feature of democracy. The US Constitution’s Bill of Rights identifies many of these civil liberties. All state constitutions also guarantee civil liberties, which are similar, if often not more extensive than those in the Bill of Rights.

Second, you must remember that the US Constitution did not originally prevent stateinfringement of civil liberties.The Bill of Rights was written to protect individuals from the federal government, not from the states. Recall, it was the Anti-Federalists who insisted that the Bill of Rights be added to the Constitution as a condition of ratification. They were worried about an overbearing national government, so the intent of the Bill of Rights was to ensure freedom from the federal government only.  Thus, for example, the 1st Amendment clearly says CONGRESS “shall make no law . . . ”  not “Congress and the states shall make no law . . . ”. Consequently, when the Supreme Court first confronted the question of whether the Bill of Rights should act as a federallimit on state governments in 1833, it said no. Any limit on a state’s ability to unduly restrict civil liberties would be found only in state constitutions. It was not until 1868 that the 14^thAmendment protection came to be.

Third,the 14^thAmendment’s due process clauseis the avenue the Supreme Court has used to prevent states from restricting individual liberties.The 13th, 14th, and 15^thamendments were added just after the Civil War. Unlike the Bill of Rights, the 14^thamendment ‘s due process clause specifically limits a state’sability to unduly constrain freedom: “[N]or shall any State deprive any person of life, liberty, or property, without due process of law.  . . .” Thus, when the Supreme Court was confronted with the question of whether the Bill of Rights would apply to the states afterthe 14^thAmendment, it now had a Constitutional way to protect individual freedoms from state encroachment. Although the due process clause does not list specific freedoms, as does the Bill of Rights, it does refer to “life, liberty, or property.” Thus, the Supreme Court began to “incorporate” specific provisions of the Bill of Rights by deciding if a given freedom was so fundamental that it must be a part of the 14^thAmendment’s concept of “life, liberty, or property” such that it could not be denied by a state without “due process.”

Fourth,the process of incorporation isselective, or on a case-by-case basis. The Supreme Court has never ruled in a single case that every provision in the Bill of Rights, or even every provision in one amendment, should be applied to the states.  In fact, there are still some parts of the Bill of Rights that have not been applied to the states (for example, the 5^thAmendment right to a grand jury). The Supreme Court uses its power of judicial review (which allows it to limit other branches and levels of government when it determines they have exceeded their power under the Constitution) to decide whether the specific liberty in the case before it is so fundamental to individual freedom that it ought to be included in the 14^thAmendment’s due process clause and so limit a state’s ability to infringe upon it.

Finally,it is important to understand the effect of selective incorporationon the federal system of government established by the US Constitution. A key component of federalism is the idea that states have certain spheres of authority upon which the federal government may not encroach. Anytime the Supreme Court has incorporated a specific provision of the Bill of Rights, it has effectively limited a state’s power to make its own laws. If the Supreme Court finds that fundamental freedoms should include the liberty to wear an armband in school in protest, or that the accused must be told of their 5^thand 6^thamendment rights (“Miranda Rights”) the federal level of government has trumped a state’s right to make law to the contrary. This outcome results from the fact that the Constitution is the Supreme Law of the Land and judicial review gives the Supreme Court the power to interpret it. It is done to protect freedom throughout the United States, but it also means that the balance of power between the states and the federal government has been tilted in favor of the federal government, at least in the instance of the civil liberty at issue. This is why people say the effect of the doctrine of selective incorporation is to nationalize the Bill of Rights.

To understand the process of selective incorporation, let’s look at three Supreme Court cases identified by the College Board’s Course Description. These cases illustrate the idea that “Protections of the Bill of Rights have been selectively incorporated by way of the Fourteenth Amendment’s due process clause to prevent state infringement of basic liberties.”

Gideon v. Wainwright (1963).    The 6^thAmendment provides that in “all criminal prosecutions, . . . the accused shall . . .  have the assistance of counsel for his defense.” In the 1930s the Supreme Court ruled that even though the 6^thAmendment does not say so explicitly, this clause would be interpreted to mean that an attorney must be provided to people who cannot afford one in federal courts. However, in the 1940s it refused to apply this requirement to state proceedings.  Then, in the 1963 case of Gideon v. Wainwright, the Courtreversed itself. In that case, an indigent defendant could not afford an attorney and the state did not provide him one (state law only provided counsel in capital cases, which this was not). The Supreme Court held that the right to an attorney was so important to liberty that it would be incorporated into the 14th amendment’s due process clause in state, as well as federal, proceedings. This meant that regardless of what the state wanted, it had to provide the assistance of counsel to those too poor to afford one in all criminal proceedings.

Roe v. Wade (1973). Several years before Roe v Wade, the Supreme Court had decided that the concept of liberty protected by the due process clause of the 14^thAmendment included a right of privacy. In this earlier case the ruling meant that a married couple was free to make decisions about contraceptives, even if their state law said otherwise. Roe v Wadeinvolved a Texas law that prohibited abortion, except to save a woman’s life. The Court extended the right of privacy to include a woman’s decision to a have an abortion within the first 2 trimesters of her pregnancy, regardless of a state law to the contrary. While the Court did recognize that the state had a compelling interest to protect potential life and maternal health, the due process clause of the 14^thamendment protected the woman’s liberty to make this decision free of undue state intervention. This meant that many states had to change their laws to comply with the ruling.

McDonald v. Chicago (2010).   In 2008, the Supreme Court interpreted the 2nd Amendment to include an individual right to bear arms. As a result, the Court found that provisions in a District of Columbia Code that strictly regulated the right to own a hand gun violated the Second Amendment. However, the District of Columbia (Washington DC) is governed by federal, not state, law. This meant the Court did not address the question of whether the 2nd Amendment should be incorporated into the 14^thAmendment’s due process clause.  However, two years later, the hand gun ban at issue in McDonald v Chicagowas promulgated by Chicago, and so did NOT involve federal law, which meant that the Court specifically addressed the incorporation question. The Court’s reasoning process demonstrates how selective incorporation works. It first argued that those rights that are “fundamental to the Nations’ scheme of ordered liberty” should be applied to the states via the 14th Amendment. It then found that the 2nd Amendment’s individual right to keep and bear arms for self-defense was a “fundamental” and “deeply rooted” right which should be incorporated into the 14^thAmendment. As such, it would prevent a local law-making authority from unduly restricting that liberty.

So, with all of this in mind, you should now understand the description of selective incorporation put forth in the College Board Course Description: “In a process known as selective incorporation, the Supreme Court has used the power of judicial review to interpret the due process clause in such a way as to prevent states from unduly restricting fundamental freedoms. The Court has been called upon to interpret protections for freedom of political expression and religious exercise, the right to bear arms, the right of privacy, and the rights necessary to ensure that those accused of crimes receive a fair trial.”