Selective Incorporation

Selective incorporation is a doctrine written into the Constitution that protects American citizens from their states’ enacting of laws that could infringe upon their rights. Selective incorporation is not a law, but a doctrine that has been established and confirmed time and again by the United States Supreme Court. Essentially, selective incorporation enables the federal government to place limits on the states’ legislative power. To explore this concept, consider the following selective incorporation definition.

Definition of Selective Incorporation


  1. The process utilized by the United States Supreme Court to ensure that citizens’ rights are not violated by laws or procedures created at the state level.


1884    Discussed in Justice John Marshall Harlan’s dissent in Hurtado v. California

What is Selective Incorporation

Selective incorporation is a constitutional policy that has been enforced over the years in several United States Supreme Court rulings. The purpose of the policy is to protect American citizens from laws and procedures developed at the state level, which could potentially infringe upon their rights, as defined in the Bill of Rights.

Selective incorporation itself is not a law per se. It is more of a safeguard for the American people that simultaneously recognizes the federal government’s authority to limit the states’ lawmaking powers. Selective incorporation has applied to cases involving everything from freedom of speech, to freedom of religion, to the right to keep and bear arms. Infringement upon citizens’ First and Fourteenth Amendment rights have been referred to the Supreme Court for the ultimate decision as to whether or not states have overstepped their boundaries by their actions or rulings at the state court level.

Selective Incorporation Doctrine

Selective incorporation doctrine reaches as far back as the origin of the United States itself. As the Constitution was being drafted, a debate arose over establishing which rights should be afforded to state governments, and what powers would be held by the federal government. However, even after the Constitution was signed, it was still up in the air as to how much of an influence federal laws would have on state laws.

The Creation of the Fourteenth Amendment

The original wording of the Constitution gave fewer safeguards for citizens’ personal rights, such as due process, the right to vote, and citizenship, from laws made by the individual states. After the Constitution was ratified, Congress set out immediately to create the Bill of Rights, which are embodied in the first 10 amendments to the Constitution. Still, the Constitution remained a work in progress.

The selective incorporation doctrine didn’t come into play until after the creation of the Fourteenth Amendment which specifically bars states from infringing upon the constitutional rights of American citizens. The Fourteenth Amendment was ratified in 1868, after the Civil War, as a way to protect the rights of the newly freed slaves. As time went on, the Fourteenth Amendment became the authority on such matters as free speech, education, and the right to legal counsel.

A number of cases have arisen over the years in which states were accused of having gone too far – actually abusing their power – potentially violating the rights of American citizens. The more cases the Supreme Court ruled on, relying on the selective incorporation doctrine, the more solidified the doctrine became. When deciding matters involving state law, and whether or not states have acted in an unconstitutional manner, this doctrine is now widely used.

Selective Incorporation Examples in the Supreme Court

Selective incorporation has become an accepted doctrine over time, as the Supreme Court has ruled in several cases in which the states’ authority was questioned. Following are examples of selective incorporation doctrine over the years.

Holding the States to the Fifth Amendment Takings Clause (Eminent Domain)

In 1897, the city of Chicago made plans to widen Rockwell Street, which involved crossing through private land that was owned by the Chicago, Burlington & Quincy Railroad Company. Illinois state law stated that, when the government wanted to take over a private property for public use, a jury would be need to be brought in to determine how much the government should pay to the owner of the property.

A jury was called for this situation, and the railroad and the city both made their cases to the jury regarding the value of the Railroad’s land. The jury came to the conclusion that just compensation that should be paid to the railroad would be only one dollar. Their reasoning was that, since the city would not actually be taking over the land, but would only be interfering with the railroad’s use of it, there was no need to pay full value for the property.

The railroad company requested a new trial, but the Supreme Court of Illinois upheld the one-dollar payment decision. The U.S. Supreme Court affirmed the Illinois law, finding it sufficient due process as defined by the Due Process Clause of the Fourteenth Amendment, which states, in part:

“…nor shall any state deprive any person of life, liberty, or property, without due process of law.”

Because the Court used the due process requirements of the Fourteenth Amendment to interpret state laws, this matter became a landmark case. Before this case, the Fourteenth Amendment was only relied upon to interpret federal laws. The Court also referred to the Fifth Amendment, which requires just compensation for private property that is taken over for public use, to interpret whether or not a state action was unconstitutional – another rarity.

Whenever the Supreme Court refers to the Bill of Rights, or any other provision of the U.S. Constitution, in deciding a state action, it has “incorporated” that amendment, or provision. Selective incorporation has essentially worked to change the meaning of the Bill of Rights, which was initially meant to apply only to matters involving the federal government. Selective incorporation also gave American citizens more power, by allowing them to challenge state actions that they feel violate their protections under the Bill of Rights.

Ruling on Freedom of Speech that Endangers Citizens

Another example of selective incorporation that reached the Supreme Court involved a decision as to whether or not a citizen was entitled to freedom of speech and freedom of the press under the First Amendment of the Constitution, or if he was, in fact, rightfully convicted as an anarchist under state law.

Benjamin Gitlow was a socialist who was arrested in 1920, for passing out copies of a “left-wing manifesto” that encouraged individuals to go on strikes, and to participate in other forms of demonstration in the name of socialism. Gitlow was convicted under New York’s criminal anarchy law, which states that the act of advocating for the overthrow of the government by force is a crime. At Gitlow’s trial, he argued that his writings were nothing more than an historical analysis, and that he was being threatened with unfair punishment.

The New York court, however, disagreed, ruling that anyone who advocates for citizens to rise up in a violent revolution against their government has broken the law. The question then became whether or not New York had violated Gitlow’s constitutional rights by punishing him for advocating the overthrow of the government by force; or if Gitlow was in fact protected by the Freedom of Speech Clause written into the First Amendment of the Constitution.

The case went to the U.S. Supreme Court, which decided unanimously that Gitlow’s actions were not protected from the New York statute by the Free Speech Clause. States are permitted to forbid speech and published items, if they have the potential to infringe upon the public’s safety. Even if there is no clear and present danger in the actual words.

There is a test known as the “dangerous tendency” test, which measures the rationale of the majority of citizens in any given situation. A ruling body may decide that a certain type of speech or publication is so dangerous that it should be prohibited under the law, and that is exactly what happened here. So long as these legislative decisions are reasonable, then they will be upheld and the defendant will be punished, even if no violent actions immediately occurred.

States Have no Authority to Limit Religious Speech

In 1940, another case was heard by the Supreme Court that serves as an example of selective incorporation at work. This matter in particular concerned Jesse Cantwell and his sons, all of whom were of the Jehovah’s Witness faith. The Cantwells were preaching their faith to a largely Catholic neighborhood in Connecticut, going door-to-door, distributing religious materials. They also approached individuals on the street.

Two of these people on the street had voluntarily agreed to hear an anti-Roman Catholic message that the Cantwells had on their portable phonograph. They became so enraged by what they heard, that they had the Cantwells arrested. The Cantwells were charged with inciting a breach of the peace, and for violating a local ordinance that required a permit for solicitations. The question then became whether or not the Cantwells’ First Amendment right to free speech and free exercise were violated by either the solicitation statute, or the “breach of the peace” ordinance.

The U.S. Supreme Court ultimately ruled unanimously in favor of the Cantwells. The Court held that general solicitation regulations were valid, but restrictions related to religion were not. According to the statute, local officials to pick and choose which causes they believed to be religious, the statute violated the Cantwells’ rights under the First and Fourteenth Amendments. The Court also held that, while the Cantwells’ message was considered by many people to be offensive, it did not present any threat whatsoever of “bodily harm,” and was therefore entitled to protection under the law as religious speech.

Related Legal Terms and Issues

  • Bill of Rights – The first ten amendments to the U.S. Constitution.
  • Due Process – The fundamental, constitutional right to fair legal proceedings in which all parties will be given notice of the proceedings, and have an opportunity to be heard.