So, I’m sitting here thinking, “It feels like the whole world is literally shutting down, shouldn’t I write about that again?”. But you know what, I don’t want to spend all my time focusing on that. There is more to life and maybe this article will be a good escape from all the panic going on in the world right now.
Today, I want to introduce y’all to a concept called “selective incorporation”. It is a judicial concept, and like most judicial concepts has dramatically effected the relationship between state governments and the federal government. (Stay tuned. This Wednesday, I plan to write on the theoretical justification behind federalism or split government power).
Remember history, the Constitution and theory in your assessment of selective incorporation. I’ve laid a very thorough foundation for you in these categories. The Constitution was created to confine the federal government, NOT the state governments. This meant that the state governments were accountable to their Constitutions but not the federal Constitution. As soon as the federal Constitution is applied to the states it is no longer a federal Constitution. When applied to the states, the Constitution provides a justification for the federal government to exert its power over states.
So, here are three nuggets of information to know about selective incorporation.
One: Not All of the Founding Fathers Were in Favor of the Bill of Rights
The Bill of Rights were an extra, last minute addition to the U.S. Constitution. They were added in mostly at the behest of the Anti-Federalists who were highly concerned that the new Constitution would give far too much power to the federal government and ultimately end up eliminating state sovereignty.
But Madison, Hamilton and the other Federalists, created the Constitution to say what the federal government could do.
They never envisioned the Constitution being used as a document to say what state and local government’s could not do
In other words, they didn’t feel the need to put specific limitations on the federal government. Why would they? If the federal government could only write laws within the limited powers the Constitution said it could write laws about, then there would never be a reason for it to write a law that would violate our gun rights, because there is no power that gives them the ability to write a law about gun rights.
The other tricky aspect of the Bill of Rights was this. The founders felt that if there were a list of specific rights that the government couldn’t violate, government might feel that they could violate a right not listed, when according to the founders all rights were natural and God given. There was no need to list them because they were not government’s job to give, simply government’s job to protect through their limited lawmaking powers. The dangerous implication, of course, is that if government could give (list) the rights, government could take them away.
Two: The Fourteenth Amendment Set the Stage
In 1833, the Court made it official that the Bill of Rights restricted only the federal government in a case called Barron v. Baltimore. This means that everything in the Bill of Rights, freedom of speech, religion and the like were protected only by the state Constitutions not the Bill of Rights. Get that? That means, according to the original intent of the Bill of Rights and the Constitution, a state could violate your federal right to, pick an amendment, and that was perfectly legal as long as it was within the Constitutional limits of the state Constitution.
I want to make sure you get this because this is so counter to the way most Americans understand the Bill of Rights.
In other words, states could write a law limiting free speech, limiting gun rights, or limiting religious gathering and the federal government could do nothing about it because the Bill of Rights only applied to the federal government. Nothing but the state Constitutions could protect the right to freedom of speech, religion, guns etc from being violated by the state governments. The federal government was confined by its Constitution and the state governments by theirs. There was no overlap.
This understanding, this lack of overlap, began to change after the ratification of the Fourteenth Amendment. The Fourteenth Amendment says:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The Court slowly began to interpret this to mean that state governments must also abide by the rights listed in the Bill of Rights. Specifically, the due process clause began to be interpreted in this way. Please read my article on Marbury v. Madison for a better understanding of why the Court has this power in the first place.
As this change in understanding and interpretation happened at the Court level, the American people also began to shift in their understanding of what government could or should be able to do. The citizenry began to believe that government at every level should leave people alone — at least with respect to their guns, speech, religion and the like.
The irony, of course, was that the more the citizenry believed government should leave them alone, the more power they gave to the federal government by pushing for and supporting Court rulings in favor of federal power.
Three: Selective Incorporation is “the process by which the Supreme Court has applied most, but not all, parts of the Bill of Rights to the states”
So, selective incorporation exists because of the Bill of Rights and the Fourteenth Amendment. The Court, over time, has slowly begun to apply the Bill of Rights to state governments. Or perhaps a better way to say it is this: state governments are held accountable to and confined by the Bill of Rights just as the federal government is.
Essentially, it is a doctrine that says there are specific rights in the Bill of Rights that should be incorporated into the liberties covered under the “due process” clause of the Fourteenth Amendment. This means that according to the selective incorporation doctrine, the Court can decide to invalidate certain state laws (i.e. the Red Flag Law limiting gun rights; laws limiting free speech; laws prohibiting the free exercise of religion etc) because those laws restrict certain rights—from the Bill of Rights—that are protected, under the due process clause of the Fourteenth Amendment.
Selective incorporation didn’t really begin until 1925 as a result of the Supreme Court case Gitlow v. New York. Gitlow v. New York overturned a precedent established by the Barron v. Baltimore case that established that the Bill of Rights only limited the federal government. In Gitlow v. New York, the Court wrote an opinion saying that if the state government violates a right protected under the due process clause of the Fourteenth Amendment, the federal government has the right to reverse or invalidate the state law that did so.
However, the process of applying the Bill of Rights to state governments is not straightforward, hence the selective part of selective incorporation. This just makes things confusing. Instead of the federal government admitting that since they have the power to apply some Bill of Rights to the states, they have the power to apply them all, the Court still plays coy and refuses to make a blanket statement of incorporation. On numerous occasions, such as the Palko v. Connnecticut (1937) case where the Court said that states must observe all “fundamental” rights but not the Fifth Amendment, the Court waffles back and forth, refusing to take a hard stand one way or another.
Currently, the Third (quartering of soldiers) and Seventh Amendments (right to trial in civil cases) are wholly unincorporated and the Eighth Amendment’s prohibition against “cruel and unusual punishment” is partially incorporated while the provision that forbids excessive bail and fine is entirely unincorporated.
The idea that the Bill of Rights should be applied to the states seems a given to most Americans today. And yet, the irony is that the Bill of Rights were never supposed to exist in the first place, not to mention restrict state governments along with the federal government. It wasn’t until the doctrine of selective incorporation that the Court started to more liberally apply the Bill of Rights to state law. So, I’ll leave you guys with the following questions to puzzle over before I provide some theory to give you even more to puzzle over.
Is it a good thing that the federal government can apply its Constitution, the Bill of Rights, to the state governments? Is it a good thing that the federal government is so much stronger now than any state government? Is it a good thing that the Court is able to interpret the Constitution in new and changing ways that allow for selective incorporation?
This is one of those gray areas isn’t it? Do you not have a gut reaction inside of you saying, “Well, if the state government is prohibiting free speech, or violating our right to bear arms, shouldn’t we be happy that the federal government is stepping in?”
That’s the question, isn’t it?
Should we be?
The Liberty Belle