Selective incorporation

The unit of analysis can be narrower than an entire amendment. The Fifth Amendment contains several protections, but its grand-jury indictment requirement has not been incorporated. The Seventh Amendment civil-jury guarantee also does not bind the states through current incorporation doctrine. By contrast, the protection against double jeopardy and many other criminal-procedure guarantees do. An exam choice claiming that "the Fifth Amendment is incorporated" may therefore be too broad; ask about the particular clause or guarantee.

Once incorporated, a guarantee ordinarily supplies the same basic federal standard against state and federal government. This is a floor, not a ceiling. A state constitution may protect speech, privacy, criminal defendants, or civil litigants more generously than federal law. State law may also provide a grand jury or a civil jury even when the federal Constitution does not require that procedure in state court. What the state may not do is reduce protection below an incorporated federal minimum.

Three traps recur. First, incorporation is not total: a few guarantees remain unincorporated. Second, incorporation is not a finding that the government violated the right; it identifies the rule that governs. Third, not every Fourteenth Amendment claim involves incorporation. A person denied notice before loss of an entitlement invokes the Fourteenth Amendment's own procedural guarantee, while a person challenging a state speech restriction relies on an incorporated First Amendment freedom. Ask whether the claim imports a named Bill of Rights protection or applies the Fourteenth Amendment itself.

Video lesson: Civil Rights & Liberties: Crash Course Government & Politics #23