Selective incorporation is defined as the constitutional doctrine that gives the mandate to the federal government in limiting the states from enacting laws that are deemed to take away the rights of the citizens which they have been guaranteed as per the Bill of Rights (Henkin, Louis). Selective incorporation is not necessarily a law rather it is a doctrine that has been established over time through various court cases and the rulings made after that by the Supreme Court of the US. Its primary function is to check and limit state law making powers as some of the laws by the states though efficient, they work by taking away the rights of humans. The doctrine came about during the drafting of the Constitution where there were heated debates on the limits of the federal government to state laws and functions. Federalists held that the Bill of Rights remained irrelevant as long as the Constitution was not sanctioned. Even after the Constitution was signed and it became law there still existed debates on the extent to which the federal government would be involved in state laws. As a result, there was the need to streamline things and the time was pressing. The ruling on the case of Barron v. Baltimore, in 1833, stated that the Bill of Rights was only applicable to the national government and any laws at the state level would not be changed by the federal government. As a result, there was an imminent need for a law that gave the national government the mandate to limit state lawmaking powers.
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In1868, the Congress finally passed the 14th amendment which contained clauses that gave the national government the authority to limit state laws that went against the rights of persons as stipulated in the Bill of Rights. Among the primary purposes of the 14th amendment was to protect vulnerable former slaves rights to life, liberty and owning property more so because at this time they were duly treated like slaves with no right to freedom and owning property (Smith, McNeill). The amendment was firstly involved in overturning the decision in Barron’s case emphasizing that the Bill of Rights applied to both the national government and state laws. Since its inception, a lot of clauses have been implemented over time through court cases which instrumentally define the authority of the federal government over the state. For instance, in 1873, the Supreme Court was presented with a Louisiana monopoly case. The case stemmed back in 1869 whereby the public was not settled by the decision of the state to grant a monopoly to one slaughterhouse in New Orleans while at the same time forbidding other slaughter houses from establishing and operating in New Orleans. According to the prevailing will of the people of New Orleans, the slaughter market was for all interested, and there was no way to explain the limitation given that business was highly booming at this period. Nonetheless, the Supreme Court upheld the ruling of Louisiana granting monopoly on a slaughter house in New Orleans. The Supreme Court voted 5 in favor and 4 against to necessarily interpret and implement the Privileges and Immunities Clause which explicitly explains that a state can grant monopolies as it is not entirely forbidden in the national constitution (Hardy, David T.).
From 1920 henceforth, the selective incorporation has been broadened to cover many rights guaranteed in the Bill of Rights. The freedom of expression clause was implemented in 1925 following the case of Gitlow v. New York where the Supreme Court was clear that state and local government did not have the mandate to limit the freedom of expression for any one. 1963 saw another clause implemented that it is imperative that the states provide legal counsel for to indigent defendants in all cases (Henkin, Louis). The clause was implemented following the case of Gideon v. Wainwright where Gideon was the indigent defendant. The clause has been observed from that time to date where currently it is broadened to cover even the affluent in the society if they do not have the services of private legal counsel. In 1954, the national government struck down the powers of the states to discriminate the right to public education more so based on racial perspective. The federal government struck down these powers in the case of Brown v. the Board of Education (1954) where he had accused the Board of Education of denying him the right to education because he was colored. These and other Supreme Court rulings have continued to enforce selective incorporation hence limiting states on infringing on the rights of people as enshrined in the Bill of Rights.
- Hardy, David T. “Mcdonald V. Chicago: Fourteenth Amendment Incorporation And Judicial Role Reversals.” SSRN Electronic Journal, pp. 332-345.
- Henkin, Louis. “”Selective Incorporation” In The Fourteenth Amendment.” The Yale Law Journal, vol 73, no. 1, 2013, p. 74.
- Smith, McNeill. “Of The Search For Original Intent: Curtis On The Fourteenth Amendment And The Bill Of Rights.” Law & Social Inquiry, vol 13, no. 3, 2012, pp. 583-617.