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Selective Incorporation: What You Need to Know

By Adnan Farooqui

Published on 27 Apr 2023 4 min read

Selective incorporation may seem like a method to form your business or fill out corporate bylaws, but that’s not what it is. If you’ve been wondering what is selective incorporation, just know that it’s not directly related to business formation.

The term “incorporation” causes some confusion since that’s typically associated with one of the many ways to set up a business, such as starting an LLC. It’s a bit more complicated than that.

What Is Selective Incorporation?

Selective incorporation is a doctrine of constitutional law that empowers the federal government to prevent state governments from making laws that infringe on some of the constitutional rights guaranteed to American citizens. Some, but not all, rights in the Bill of Rights apply to all states under the equal protection clause of the Fourteenth Amendment. 

The US Supreme Court has held that this amendment incorporates several rights in the Bill of Rights against the states. That’s because the Due Process Clause of this amendment prohibits states from depriving people of life, liberty, and property without due process. In the event a state passes a law that’s against the selectively incorporated rights, it would be unconstitutional and thus liable to be struck down.

What Is the Bill of Rights?

The first ten amendments to the US Constitution are collectively called the Bill of Rights. Drafted as a means to place a check on the federal government’s power, the first ten amendments added to the Constitution described the basic freedoms given to every American citizen. 

These amendments were passed by Congress in 1791 and they came to be known as the Bill of Rights. The fundamental constitutional rights include due process of law, freedom of speech, civil liberties, etc. It also reserves all powers not delegated to the federal government to the people or the states.

The History of the Selective Incorporation

The founding fathers debated at length about the power of state governments in relation to the federal government. Initially, no consensus could be reached and thus the constitution was signed and enacted without this issue being resolved. After the Bill of Rights was passed, the Barron vs. Baltimore case came up before the Supreme Court in 1833. 

It ruled that the Bill of Rights only applied to the federal government, meaning that states could pass laws that violated the Bill of Rights and the federal government couldn’t intervene. Congress would ultimately pass the Fourteenth Amendment in 1868, which forbade states from making laws restricting the freedom to life, liberty, and property without due process, effectively overturning the Supreme Court’s decision in Barron vs. Baltimore. 

Selective vs. Total Incorporation

Selective incorporation calls for applying some rights from the Bill of Rights whereas total incorporation favors the complete application of the Bill of Rights. After the fourteenth amendment was passed, more cases came before the Supreme Court where states’ power to make laws that violated the Bill of Rights was challenged. This led to a difference of opinion among justices. 

Some favored total incorporation and held that the Due Process Clause should apply to the complete Bill of Rights. In their view, states were to be prohibited from the same actions as the federal government. Others had the view that only certain rights from the Bill of Rights should be applied as otherwise it would place an unnecessary burden on states. Some provisions, such as powers not given to the federal government to be reserved by states, would also be illogical to apply to states.

6 Rights Applied to States Through Selective Incorporation

Some of the protections guaranteed to citizens in the Bill of Rights that apply to states are:

• First Amendment
  • Freedom of religion, speech, press, and assembly

• Second Amendment
  • Right to keep and bear arms

• Fourth Amendment
  • Freedom from unreasonable search and seizure

• Fifth Amendment
  • Due process, right against self-incrimination and double jeopardy

• Sixth Amendment
  • Right to a speedy and public trial, right to counsel

• Eighth Amendment
  • Protection against cruel and unusual punishments

Examples of Supreme Court Cases

Several cases have come up before the Supreme Court over many decades through which the jurisprudence for selective incorporation has developed. Gitlow vs. New York (1925) was the first case in which the Supreme Court held that freedom of the press and speech was protected by the Due Process Clause of the Fourteenth Amendment. The court subsequently rejected the doctrine of total incorporation in Palko vs. Connecticut (1937), adopting selective incorporation instead and the guidelines for its application.

Brown vs. The Board of Education (1954) was another landmark judgment of the Supreme Court where it was held that a state couldn’t use racial discrimination in public education. It was also ruled through Gideon vs. Wainwright (1963) that states are required to provide an attorney for criminal defendants who can’t afford one on their own.

Selective Incorporation May Be Confusing, but Bookkeeping Doesn’t Need to Be

The doctrine of selective incorporation tends to confuse people but once you take time to understand it, it’s quite simple. It prohibits states from passing laws that violate some of the protections that are guaranteed to citizens under the Bill of Rights.  

If you find bookkeeping confusing too, it’s time you switched to doola Bookkeeping. By opting for this dedicated solution you can free yourself from all bookkeeping tasks as doola will manage income and expense tracking. It will also provide a holistic view of your cash flow and make things stress-free come tax season.

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