AP Syllabus focus:
‘Selective incorporation extends some Bill of Rights protections to the states through the Fourteenth Amendment’s due process clause.’
Selective incorporation explains how many rights first written to restrain the national government came to restrain state and local governments too. This doctrine is central to modern civil liberties litigation and Supreme Court constitutional interpretation.
Core idea: what “selective incorporation” does
The basic constitutional problem it solves
The Bill of Rights was originally understood as limiting only the national government. States regulated speech, religion, criminal procedure, and property largely under their own constitutions and laws.
Selective incorporation is the Supreme Court’s solution for applying many (but not all) federal rights against states, using the Fourteenth Amendment as the constitutional bridge.
Key term
Selective incorporation: The Supreme Court doctrine that applies specific protections in the Bill of Rights to state and local governments through the Fourteenth Amendment’s due process clause.
A major consequence is that a person can challenge state action in federal constitutional terms, not only under state constitutional law.
Constitutional mechanism: the Fourteenth Amendment “vehicle”
The Due Process Clause as the pathway
The Fourteenth Amendment says no state shall “deprive any person of life, liberty, or property, without due process of law.” Under selective incorporation, the Court treats certain Bill of Rights protections as fundamental “liberties” that states may not violate.
Important features of this approach:
It is selective: rights are incorporated one-by-one, not automatically as a complete package.
Table summarizing which specific provisions of the Bill of Rights the Supreme Court has recognized as incorporated against state and local governments through the Fourteenth Amendment. The table’s case-by-case format visually reinforces that incorporation happens one right at a time via specific Supreme Court decisions, not as an all-at-once “total incorporation” package. Source
It is judicially managed: incorporation happens through Supreme Court interpretation in actual cases.
It targets state and local action: legislatures, governors, police, school boards, and city governments can all be defendants in incorporation-based claims.
How “selective” incorporation works in Court doctrine
Case-by-case incorporation
The Court asks whether a particular Bill of Rights protection is sufficiently fundamental to be enforced against the states via the Fourteenth Amendment. Over time, the Court incorporated many (though not necessarily every detail) of major protections.
Typical characteristics of incorporated rights include:
Strong connection to ordered liberty and basic fairness
Deep roots in American legal tradition
Necessity for meaningful enjoyment of other constitutional freedoms (for example, fair criminal process as a safeguard against arbitrary power)
Not “total incorporation”
Selective incorporation differs from the idea that the Fourteenth Amendment made the entire Bill of Rights automatically applicable to the states.
Instead, selective incorporation implies:
Some provisions were incorporated earlier than others.
Some rights were incorporated with doctrinal tailoring (the Court may articulate how a right applies in the state context).
A small number of provisions have historically been treated as not incorporated, reflecting the “selective” nature of the doctrine.
Historical development (high-utility milestones)
From original limits to modern enforcement
A concise way to understand the doctrinal shift is through landmark turning points:
Barron v. Baltimore (1833): the Bill of Rights was held to limit only the federal government, not states.
A contemporary (1831) view of Baltimore Harbor, the setting connected to Barron v. Baltimore (1833). In this case, the Court held that the Bill of Rights limited only the federal government, a starting point that later made Fourteenth Amendment–based incorporation doctrine so consequential. Source
Adoption of the Fourteenth Amendment (1868): created new textual tools to challenge state violations of liberty.
Gitlow v. New York (1925): an early step toward applying free speech principles to states through the Fourteenth Amendment.
Mid-20th century expansion: the Court incorporated many criminal procedure protections and expressive freedoms, making federal constitutional standards routine in state criminal courts and local regulations.
These cases illustrate the core meaning of selective incorporation: the Bill of Rights became enforceable against states primarily through Fourteenth Amendment due process litigation.
What to remember for AP Gov exam use
Precise, exam-friendly phrasing
Selective incorporation is a Supreme Court doctrine.
It applies some Bill of Rights protections to state and local governments.
The constitutional hook is the Fourteenth Amendment’s Due Process Clause (not the original Bill of Rights text by itself).
Common confusion to avoid
Selective incorporation is about states, not mainly about disputes between Congress and the president.
It is not simply “states must obey the Bill of Rights” as a historical fact; it is a doctrinal development produced by Supreme Court interpretation over time.
It does not require that states copy federal procedures exactly in every detail; the key is whether the state has violated an incorporated constitutional protection as defined by the Court.
FAQ
Post-Civil War case law interpreted the Privileges or Immunities Clause narrowly.
That left the Due Process Clause as the main workable basis for applying fundamental liberties against states.
No. Selective incorporation is incomplete and historically uneven.
Some provisions have been treated as not incorporated, and others have been incorporated in ways that differ in application details.
Total incorporation is the theory that the Fourteenth Amendment made the entire Bill of Rights apply to states automatically.
Some justices endorsed versions of this view, but it did not become the dominant doctrine.
It is primarily a Bill of Rights doctrine.
However, Fourteenth Amendment “liberty” litigation can also involve other asserted fundamental rights, even when not textually listed in the first ten amendments.
No. State constitutions can provide equal or greater protections.
But selective incorporation creates a federal constitutional floor that states generally cannot go below.
Practice Questions
(2 marks) Define selective incorporation and identify the constitutional provision used to apply incorporated rights to the states.
1 mark: Correct definition that it applies some Bill of Rights protections to state/local governments.
1 mark: Identifies the Fourteenth Amendment’s Due Process Clause as the mechanism.
(6 marks) Explain how selective incorporation changed the relationship between the Bill of Rights and state governments. In your answer, refer to one relevant Supreme Court case.
1 mark: States that the Bill of Rights originally limited the federal government only.
2 marks: Explains that the Supreme Court applies specific Bill of Rights protections to the states through the Fourteenth Amendment Due Process Clause (must mention “selective”/case-by-case).
1 mark: Accurate reference to a relevant case (e.g., Barron v Baltimore, Gitlow v New York) tied to incorporation.
2 marks: Explains the case’s relevance to the shift (e.g., Barron establishes non-application to states; Gitlow signals application via Fourteenth Amendment).
