Selective Incorporation and the Fourteenth Amendment: Cases

Selective incorporation makes particular Bill of Rights protections enforceable against state and local government through the Fourteenth Amendment. Identify the specific guarantee, the government actor and the precedent that applies it. Then ask whether the challenged conduct violates that guarantee; incorporation and a violation are separate questions.

Analyze the Particular Constitutional Guarantee

Selective incorporation describes the Supreme Court’s provision-by-provision method of deciding which Bill of Rights guarantees are included within the liberty protected against state deprivation by the Fourteenth Amendment. The Court did not incorporate the first eight amendments as a single package. Nor does selective mean that each state chooses which federal freedoms to honor. Selection occurs through constitutional adjudication, and an incorporated guarantee binds every state and locality.

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 answer choice claiming that “the Fifth Amendment is incorporated” may therefore be too broad. Ask about the particular clause or guarantee.

A Federal Floor and Additional State Protection

Once incorporated, a guarantee 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 the federal minimum, while remaining subject to other federal constitutional limits. 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.

Separate Incorporation from Other Fourteenth Amendment Claims

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.

Use Named Holdings and Check the Date of a Summary

Benton v. Maryland (1969) applied the Fifth Amendment’s Double Jeopardy Clause to the states. That does not incorporate every other provision of the Fifth Amendment. McDonald v. Chicago (2010) discusses the separate grand-jury indictment and Seventh Amendment civil-jury requirements, which have not been incorporated.

Read older lists with later decisions. Timbs v. Indiana (2019) incorporated the Eighth Amendment’s Excessive Fines Clause. Its ruling that the clause applies to the states is distinct from deciding whether a particular forfeiture is excessive. Ramos v. Louisiana (2020) held that the Sixth Amendment requires a unanimous verdict to convict a defendant of a serious offense in state court as well as federal court. An older summary allowing nonunanimous state convictions no longer states that rule.

For the federal-floor distinction, PruneYard Shopping Center v. Robins (1980) recognizes a state’s authority to protect individual liberties more broadly under its own constitution, subject to federal constitutional limits. Additional state protection is a different source of law, not a state’s option to disregard an incorporated federal right.

Apply the Clause-by-Clause Method

Consider three hypothetical claims: a state defendant invokes the Fifth Amendment’s protection against double jeopardy; a state civil litigant invokes the Seventh Amendment to demand a jury; and a person challenges the lack of required notice before a state deprives them of a protected property interest. Which claims require checking incorporation, and which invokes the Fourteenth Amendment’s own procedural protection?

Video Lesson: Selective Incorporation

Khan Academy gives a focused explanation of this topic in Selective incorporation | Civil liberties and civil rights.

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For an incorporated protection in criminal proceedings, compare the right to counsel and its timing.

Continue Studying Civil Liberties

For a broader map connecting selective incorporation and the fourteenth amendment to civil liberties, civil rights, and equal protection, use the AP U.S. Government and Politics learning hub.