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Selective Incorporation

Selective Incorporation

The doctrine of selective incorporation is a much debated and controversial aspect in the United States Constitution. Learn more about this doctrine in the article below.
Sujata Iyer
The United States of America is one of the largest democracies in the world. And being such a large democracy has its pluses and minuses. The basis of any democracy is to maintain law and order while giving the citizens the freedom to live as they please, but within a given framework of rules and regulations. This framework is the US Constitution. As you may have already read numerous times before, the Constitution is basically a book of rules that the citizens of the country have to abide by. The characteristics of American democracy are favorable to the citizens of the country because they bestow upon them unalienable rights. Among these, is a doctrine of selective incorporation, which is a matter of confusion for many. In the section below, we have tried to explain this with the help of certain examples.

What is Selective Incorporation?
In most places, the definition of selective incorporation is nothing but a doctrine of the Constitution, whereby certain provisions from the Bill of Rights are made applicable to the state governments, as per the 'due process' clause of the Fourteenth Amendment of the Constitution.

Selective Incorporation of the Bill of Rights
In simple words, the selective incorporation doctrine states that some provisions that are present in the Bill of Rights of the Constitution are made applicable to certain states as well. In order to understand further, we must know what the Bill of Rights is. The Bill of Rights is a set of changes that were made to the original Constitution. In all, since its formulation, there have been 27 amendments to the US Constitution. These amendments were pertaining to specific states. The reason behind the amendments was that initially, all the rules, regulations, and clauses in the Constitution were applicable to the federal government only. This situation was taken advantage of in many cases by different states. For instance, in the Barron v. Baltimore, 32 US 243 case in 1833, it was seen that the court used the Fifth Amendment (which protects the citizen from unlawful taking away of his property). This clause was mentioned in the Bill of Rights, which is applicable to the federal government, but not in the individual state's constitution (in this case, Maryland). More cases like this came to the forefront over the years. This prompted the Supreme Court to form a doctrine of selective incorporation.

Many such amendments have all been taken and framed together in what we call the Bill of Rights. Selective incorporation is the doctrine wherein some clauses of the Bill of Rights have been made applicable to the state government in addition to the federal government. This means that if a person is allowed to carry a gun for his protection under the Second Amendment, all the states that the selective incorporation applies to cannot deny the citizen of this right (in case the second amendment is a part of the doctrine). This works in favor as well as against both the governments. While in a way curtailing the freedom of the states, it also gives the states free rein to form and implement laws of their own accord.

Examples of Selective Incorporation

In this section, we'll give you a list of the amendments that have been 'incorporated' under the doctrine of selective incorporation. Among the first 10 amendments, the ones given below are incorporated.
  • First Amendment: Freedom of religion
  • Second Amendment: Right to possess arms for self defense
  • Third Amendment: Quartering of soldiers
  • Fourth Amendment: Freedom against unreasonable search and seizure
  • Fifth Amendment: Right to be indicted by a jury and taking clause (mentioned above)
  • Sixth Amendment: Right to a speedy trial
  • Eighth Amendment: Protection against 'cruel and unusual punishment'
The concept of selective incorporation was adopted to ensure and enhance the civil and human rights of the citizens of the country. However, it has proved to be a bane in some cases that have taken undue advantage of the liberty meted out by this doctrine.