Selective incorporation: lesson overview

While the Bill of Rights expressly protects citizens’ rights and liberties against infringements by the federal government, it does not explicitly mention infringement or regulation of rights by state governments. Over a succession of rulings, the Supreme Court has established the doctrine of selective incorporation to limit state regulation of civil rights and liberties, holding that many protections of the Bill of Rights apply to every level of government, not just the federal.

McDonald v. Chicago (2010) - The first case in which the Second Amendment right to “keep and bear Arms” was incorporated to the states.${}^2$‍ The City of Chicago passed a handgun ban in 1982; Chicago resident Otis McDonald filed a lawsuit challenging the ban in 2008 on the basis that he needed a handgun for self-defense. The Court declared the handgun ban unconstitutional by a 5-4 majority, ruling that the Second Amendment right to bear arms for self-defence is fundamental, and therefore incorporated to the states through the Fourteenth Amendment’s due process clause.

Roe v. Wade (1973) - Norma McCorvey, called by the alias Jane Roe in the court proceedings, wished to terminate her pregnancy but found she could not do so safely or legally in the state of Texas. In the resulting Supreme Court case, the Court ruled that a woman’s decision to have an abortion in the first trimester of pregnancy was protected by the constitutional right to privacy which is incorporated to the states, and that it was therefore unconstitutional for a state to criminalize all abortions.

Tinker v. Des Moines Independent Community School District (1969) - Iowa teenagers Mary Beth Tinker, her brother John, and their friend Christopher Eckhardt were suspended from their public high school for wearing black armbands to protest the Vietnam War. In the resulting case, the Supreme Court ruled that the armbands were a form of symbolic speech, which is protected by the First Amendment and applicable to all levels of government, and therefore the school had violated the students’ First Amendment rights.

Gideon v. Wainwright (1963) The Supreme Court incorporated the Sixth Amendment right to legal counsel at the state level, ruling that state courts were responsible for providing a lawyer to a defendant who could not afford one.

Limits on state power: Using the doctrine of selective incorporation, the Supreme Court has ruled that many provisions of the Bill of Rights apply to the states. This represents a limiting of state power by federal oversight; any state attempt to regulate individual rights could potentially be ruled unconstitutional by the Court.

To incorporate or not to incorporate? When deciding whether a right is incorporated to the states (and all levels of government), the Court considers whether the right is “implicit in the concept of ordered liberty”, or otherwise “fundamental”. If the right is fundamental, it applies to the states through the Fourteenth Amendment’s due process clause.

Not every right or provision of the Bill of Rights has been incorporated to the states; including those that have never been challenged in the Supreme Court, and those that the Court has specifically ruled non-fundamental, such as the Fifth Amendment’s double jeopardy protection.

Individual freedom and public safety: The tension between public safety considerations and individual rights plays out at all levels of government, and is frequently a factor in cases in which the Court considers selective incorporation. For example, McDonald v Chicago came about because of a city-level handgun ban motivated by public safety, but the Court’s ruling gave primacy to individual rights and reversed the ban.

What basis does the Court use to decide whether or not a right is incorporated to the states?

Does selective incorporation limit or increase the power of state governments? How?

From where does the Supreme Court derive its authority to declare state laws unconstitutional? Is it right for the judicial branch to have that authority?