Selective Incorporation and the Fourteenth Amendment

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.

The mechanism behind selective incorporation and the fourteenth amendment

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.

Selective Incorporation and the Fourteenth Amendment: key distinctions

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.

Practice with selective incorporation and the fourteenth amendment

For Selective incorporation, identify the constitutional text, whether government action is federal or state, and whether incorporation or another Fourteenth Amendment rule is required. Give one concrete example. The missing piece is: Selective incorporation treats particular fundamental Bill of Rights guarantees as protected against state infringement through Fourteenth Amendment due process. Procedural due process asks what notice, hearing, and neutral decision process are required. Substantive due process asks whether government may invade a protected liberty at all, regardless of procedure.

Video lesson: Selective Incorporation and the Fourteenth Amendment

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Connect this lesson to the larger course

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.