AP® United States Government and Politics · Unit 3 · Topic 3.7
Selective Incorporation
Selective incorporation is the process by which the Supreme Court applied individual Bill of Rights protections to state governments, one right at a time, through the Fourteenth Amendment's due process clause.
When the Bill of Rights was ratified in 1791, it restrained only the federal government. A state could censor your newspaper or search your house without a warrant, and you had no federal constitutional claim, because the text said Congress shall make no law, not states shall make no law. This lasted almost 140 years. The Fourteenth Amendment, ratified in 1868, changed the possibility: it says no state shall deprive any person of life, liberty, or property without due process of law. The word liberty became the pipe. Starting in the 1920s, the Supreme Court began ruling that specific rights counted as liberty under that clause, which meant states had to respect them too.
This happened selectively, one right at a time, case by case, not in one sweep. A right stays unincorporated until some plaintiff's case forces the Court to rule on it. Gideon v. Wainwright (1963) incorporated the right to counsel in felony cases. Engel v. Vitale (1962) applied the Establishment Clause to school-sponsored prayer. Tinker v. Des Moines (1969) extended free speech protection to students against school districts. McDonald v. Chicago (2010) incorporated the right to bear arms, applying the Second Amendment to a city handgun ban. Each ruling took one named right and bolted it onto the states.
Because incorporation is selective, some provisions still are not fully incorporated, including parts of the Third Amendment and the Seventh Amendment's civil jury trial guarantee. The moment a right is incorporated, any state law that violates it becomes unconstitutional and unenforceable, the same as if Congress had passed it. This connects forward to how courts apply tests like strict scrutiny once a right is incorporated, deciding how much protection it actually gets against state action.
Key terms
- Selective incorporation
- The case-by-case process of applying individual Bill of Rights protections to state governments.
- Due process clause
- The Fourteenth Amendment provision barring states from depriving anyone of life, liberty, or property without due process of law.
- Liberty
- The term courts interpret to include specific Bill of Rights protections, making them binding on states.
- Unincorporated right
- A Bill of Rights provision the Supreme Court has not yet ruled applies against state governments.
Watch it explained
- How it worksWalk me through rights spreading from the federal government to the states one case at a time.
- How it worksHow does the Fourteenth Amendment's due process clause become the pipe that carries a right down?
- Worked exampleTrace which right each of Gideon, Engel, Tinker, and McDonald pushed onto the states.
- Common mistakeWhy isn't the whole Bill of Rights incorporated even now?
- Going furtherWhat happens to a state law the moment a right gets incorporated against it?
Check yourself
End of topic.