Selective incorporation sounds like a way of filing articles of incorporation form a new business. But selective incorporation has nothing to do with business corporations. It’s a constitutional law concept that refers to the way that selected provisions of the U.S. Bill of Rights have been applied to the states through the equal protection clause of the Fourteenth (14th) Amendment.

The Bill of Rights is another name for the first ten amendments to the U.S. Constitution. Those amendments establish many fundamental rights, including freedom of religion, freedom of the press, the right to a jury trial and the right to bear arms. The Bill of Rights also protects against unreasonable search and seizure and establishes the privilege against self-incrimination.

The debate over whether the Fourteenth Amendment makes applicable against the states all of the protections of the Bill of Rights is one of the most important and longest-lasting debates involving interpretation of the  U. S. Constitution.  The Supreme Court’s first interpretation of the scope of the Fourteenth Amendment, adopted in 1868, was rendered in The Slaughterhouse Cases just five years later.  By a 5 to 4 vote the Court in that case narrowly interpreted the Privileges and Immunities Clause, thought to be the most likely basis for enforcing individual rights against states. 

In subsequent cases, attention focused on the Due Process Clause.

Beginning in the early twentieth century the Court began to selectively incorporate some of the specific provisions of the Bill of Rights while rejecting the incorporation of others.  The Court’s test for choosing which provisions–along with all the accompanying baggage of decisions interpreting the federal rights–were incorporated changed over time. 

Note that there are several possible positions that could be taken with respect to the incorporation debate.  First, one could argue that the Fourteenth Amendment (either through the P & I Clause or the Due Process Clause) made the specific provisions of the Bill of Rights enforceable against the states and no more. “Is the state’s action inconsistent with our concept of ordered liberty”? This is the “No Incorporation”

Theory advanced by Justice Frankfurter, among others.  Third, one could take a position such as Justice White did in Duncan that the Fourteenth Amendment incorporates certain fundamental provisions, but not other non-fundamental provisions.  This view is often called the “Selective Incorporation” Theory.  Finally, one could adopt either a “Selective Incorporation Plus” view or a “Total Incorporation Plus” (see Justice Murphy’s view in Adamson, for example) view.

The most recent Court decision on incorporation came in the 2010 case of McDonald v Chicago, involving a challenge to Chicago’s tough gun control legislation.  Just two years earlier, the Court had ruled in a case challenging a District of Columbia gun control regulation that the 2nd Amendment guaranteed an individual right to bear arms.

and is therefore now a right fully enforceable against the states.  Justice Thomas, concurring, argued that the better vehicle for incorporation, one truer to the original understanding of the 14th Amendment, was the Privileges and Immunities Clause.

The History of the Bill of Rights

Some of the states, freshly independent from English rule, refused to ratify the Constitution unless it also restricted the federal government’s power.

To resolve the problem, the Bill of Rights was adopted in 1791.

In 1833, the Supreme Court specifically held that the Bill of Rights only applied to the federal government and not to state governments.

That meant that states could—and did—pass laws that violated protections such as freedom of speech and freedom of the press. States could establish religions, arrest and interrogate criminal suspects and conduct trials in whatever manner they chose. And federal courts had no authority to intervene.

The 14th Amendment, ratified in 1868, forbade states from denying anyone life, liberty or property without due process of law.

Selective Incorporation of the Bill of Rights to the States

In the 1925 case of Gitlow v. New York, the Supreme Court held for the first time that the states must protect freedom of speech. Since then, a series of court decisions have applied some, but not all, of the individual protections in the Bill of Rights to state governments.

The Debate Over Selective vs. Total Incorporation

As more cases began to come before the Supreme Court to challenge states’ authority to make laws that violated the Bill of Rights, a difference of opinion developed between the justices.

Other justices advocated selective incorporation of only certain portions of the Bill of Rights. They argued that incorporation of protections such as the right to a jury trial in civil cases involving more than $20 would place an undue burden on states. Other provisions would be illogical to apply to states, such as the 10th Amendment’s guarantee that powers not granted to the federal government are reserved to the states.

Ultimately, the Court adopted the selective incorporation doctrine in the 1937 case of Palko v. Connecticut. That decision rejected total incorporation and established a selective incorporation definition and guidelines for applying it.

Rights that Have Been Applied to States Through Selective Incorporation

Over the years, a series of court decisions have applied most, but not all, of the protections of the Bill of Rights to the states. Among them are:

  • The First Amendment’s freedom of speech, press and religion
  • The First Amendment’s prohibition of state-established religion
  • The Second Amendment’s right to bear arms
  • The Fourth Amendment’s ban on unreasonable search and seizure
  • The Fifth Amendment’s privilege against self-incrimination
  • The Sixth Amendment’s right to a speedy trial
  • The Eighth Amendment’s protection against cruel and unusual punishment

A few of the protections in the Bill of Rights have not been applied to the states, including:

  • The Sixth Amendment’s right to a jury selected from residents of the state and district where the crime allegedly occurred
  • The Seventh Amendment, which guarantees a jury trial in civil cases involving more than $20
  • The Eighth Amendment’s protection against excessive fines

Over the past century, the doctrine of selective incorporation has extended most of the Bill of Rights to protect citizens against actions by the states as well as the federal government. Therefore, with a few exceptions, states are not allowed to enact laws that violate the fundamental protections in the Bill of Rights.

The Fourteenth Amendment, passed in 1868 has maintained a divisive role in criminal procedure. Watson (2009) in her text states” The interpretation is that all citizens are subject to federal law, and that no state may interpret or pass laws that would conflict with specified rights listed in the Amendment federal law”(p.527). The U.S. Supreme Court repeated this interpretation for many years. The Fourteenth Amendment guarantees rights to fairness and order in a series of verdicts. It did not intend the amendment to specify that all states must follow with absolute a certain right in the Bill of Rights should be included in the description of due process.

Selective Incorporation

The Debate whether or not the Fourteenth Amendment makes applicable with regard to the states all of the protections of the Bill of Rights is one of the most important arguments involving interpretation of the United States Constitution. David W. Neuberger (2009) in his text states,” Through a legal doctrine known as incorporation, the Supreme Court ruled that the due process clause of the Fourteenth Amendment made some provisions of the Bill of rights applicable to the states”(p.34).

Not all of the protections of the Bill of Rights have been included into the Fourteenth Amendment. Most of the major provisions pertain to the states as well as the national government. Important provisions of the Bill of Rights incorporated through the due process clause of the Fourteenth Amendments are The Fourth Amendment; protection against searches and seizures, the Fifth Amendment; protection against self- incrimination, the Sixth; and prohibition against cruel and unusual punishment.

Selective incorporation combines aspects of two other approaches. This concept accepts the basis of the fundamental rights-ordered liberty approach that Fourteenth Amendment Due Process only protects fundamental rights. Selective incorporation, do not consider all rights in the Bill of Rights fundamental not all rights in the Bill of Rights and some rights outside the Bill of Rights are fundamental. This approach rejects the totality of circumstances to decide whether phases of rights or particular portions of Instead if a right was fundamental, drafters incorporated it into the Fourteenth Amendment through the Due Process Clause and deemed applicable to the states and the federal government.

Totality of Circumstances

The condition that no state shall “deprive any person of life liberty or property was added to the constitution in 1868 (Ferdico, Fradella, and Totten, 2009 pp.12). In Gitlow v. New York, 268 U.S. 652 (1925) the Supreme Court interpreted the phrase “due process of law to mean, without condensation of certain rights guaranteed by the Bill of Rights “(Ferdico, Fradella, and Totten, 2009, pp.12). However, members of the court have argued about which provisions of the Bill of Rights are applicable to the states and to what extent.

Three major due process approaches have evolved over the years. The total incorporation made the entire Bill of Rights applicable between the Fourteenth Amendment, Due Process Clause, and the Bill of Rights. However, it said the Due Process Clause had a self-regulating influence that existed separate from the Bill of Rights. Courts looked to the totality of circumstances of the specific case to determine what phase of a right or what portion of it was fundamental.

Guarantees in the Bill of Rights concerning criminal procedure that do not apply to the states are: the Fifth Amendment; right to an indictment by a grand jury, the Eighth Amendment. However, in Burch v Louisiana, the Supreme Court held that when only there are six jurors on the panel, the verdict must be undisputed( 411 U.S. 13 1979).

Exclusionary Rule and the Fourth Amendment

The Warren Court made fervent use of incorporation in the concept of First Amendment cases. Authorities consider every Bill of Rights guarantee with regard to the criminal process necessary to due process of the law. (Whitebread, 1980, pp.2).The exclusionary rule prohibits the use of evidence or testimony obtained by government officials through means that violate the Fourth, Fifth, or Sixth Amendments to the Constitution (Whitebread, 1980, pp.2). Another underlying principle for the exclusionary rule is that the judiciary should not endorse lawlessness of a coordinated branch of government.

Consequently, the exclusionary rule suppresses evidence gathered through illegal arrest, search, and seizure. Week v. United States (1914), a landmark case, contained the first concepts of the exclusionary rule.

Whitebread (1980) reminds us,” Justice Day stated “ The reason for excluding such illegally obtained evidence: to sanction such proceeding would be to affirm by judicial decision a manifest neglect if not an open defiance of the constitution, intended for the protection of the people of such unauthorized action”(p.15). To the contrary, In Wolf v. Colorado (1949), the ruled that states were not required to adapt the exclusionary rule.

The Court refused to recognize the exclusionary rule in state cases. Authorities convicted the petitioner of conspiracy to perform abortions using illegally seized evidence in violation of the Fourteenth Amendment.

The Court examined the issue of whether the exclusionary rule was valid with regard to the protection of the Fourth Amendment.

In this case, the court left it for the states to determine how to protect the Fourth Amendment guarantees. Twenty-six states adopted the exclusionary rule by 1960 in spite of the Wolfe decision. This trend, despite Wolf, signaled a growing concern that there was no other effective remedy for Fourth Amendment violations. In Mapp v. Ohio (1961), the Supreme Court finally reconsidered the Wolfe Doctrine of 1949.

In Mapp v. Ohio (1961), criminal justice officials convicted the defendant of possession of obscene material based on evidence that they gathered illegally from her home. The Ohio Supreme Court affirmed her conviction. The defendant, American Civil Liberties Union, and the Ohio Civil Liberties Union, appealed to the U.S. Supreme Court, asking that it review and overturn its decision in Wolf. The court overruled in a 5-4 decision holding that the exclusionary rule is binding to the states (Whitebread, 1980, pp.16).


The First Amendment; freedom of speech, Fourth Amendment; protection against search and seizure, Fifth Amendment; protection against self incrimination, Sixth Amendment; right to counsel, and Eight Amendment

The rights to own, sells, and bequeath property; the right to marry and raise a family, to contract; work and live where one desires.

The exclusionary rule is a concept that the Supreme Court utilizes as a basis for incorporation. Criminal justice officials use the exclusionary rule for enforcing vital protections of the Bill of Rights. It forbid prosecutors to use illegally gathered evidence during a trial. The Supreme Court adopted the exclusionary rule on three grounds. Nuebaurer (2009) in his text states “The first, is a normative argument: A court of law should not participate in or condone illegal contact (p.253).

Second, Neubaurer (2009) remind us, “reflects an empirical assessment: Excluding the evidence will deter law enforcement officials from illegal behavior” (p.253). Finally, Neubaurer (2009) in his text states” justification is based on experience; alternative remedies such as civil suits for damages against police officers for misconduct” The grounds for illegal search and seizure are complex and remain highly controversial today.

The rights of U.S. citizenship are irrefutable; the rights guaranteed by the Constitution are not absolute. If the majority of citizens fail to exercise their right then others may loose their rights. Ferdico, Fradella, and Totten (2009) remind us,” As Justice Oliver Wendell Holmes observed, protection of free speech would not protect a man falsely shouting ‘Fire in a theater and causing panic” Freedom of speech and press does not authorize the publication of obscenity and libel. No one can participate in activity to overthrow the government by force. Civil liberties give all U.S citizens obligations to exercise their rights within a mutual respect and framework for our government and the rights of others.