AP Syllabus focus:
‘By applying certain rights to the states, selective incorporation restricts how state governments may regulate civil liberties.’
Selective incorporation is a major source of modern limits on state authority.
This table (from a Congressional Research Service Legal Sidebar) summarizes which Bill of Rights provisions the Supreme Court has recognized as incorporated against state and local governments via the Fourteenth Amendment. It pairs each clause with a leading incorporation case (and year), making the “case-by-case” nature of selective incorporation concrete. Use it to connect broad doctrine to specific, testable examples (e.g., speech, searches, counsel, jury trial). Source
It determines which national constitutional rights individuals can enforce against state and local governments, reshaping policing, criminal procedure, speech rules, and state legislation.
The core idea: incorporation as a limit on state power
Selective incorporation: The Supreme Court’s practice of applying specific protections from the Bill of Rights to the states through the Fourteenth Amendment’s due process clause, case by case.
Incorporation changes federalism in practice by creating a national baseline of protected liberty. Once a right is incorporated, a state cannot enforce laws or procedures that violate that right, even if the state’s voters and legislature support the policy.
What “limits state power” means in real terms
State legislatures lose policy discretion where an incorporated right sets a constitutional boundary (for example, rules restricting expressive activity or criminal procedure).
State executives and agencies (police, schools, licensing boards) must implement policies consistent with incorporated rights.
State courts must follow Supreme Court constitutional standards when reviewing state prosecutions and civil cases that implicate incorporated liberties.
Local governments are also constrained because they are created by states; incorporated rights apply to state action at every sub-state level.
How incorporation functions as a legal constraint
The mechanism: constitutional litigation and judicial review
Incorporation becomes a practical restraint through lawsuits in state or federal court alleging that a state law or practice violates an incorporated right. If a court agrees, it can:
Invalidate the state law (it cannot be enforced).
Reverse a conviction obtained through unconstitutional procedures.
Exclude evidence obtained in violation of an incorporated protection (where doctrine requires).
Order injunctive relief requiring a state actor to change a policy.
Standard-setting: uniform rules that states must follow
Incorporation makes many civil liberties nationally uniform. States may still regulate, but only within constitutional limits set by Supreme Court doctrine. This typically forces states to:
Draft statutes more narrowly
Provide stronger procedural protections
Train officials to comply with constitutional requirements
Accept that some popular policies are off-limits if they conflict with incorporated liberties
Areas where incorporation most visibly restricts states
Criminal justice and policing
Incorporation significantly constrains how states investigate, charge, and try people. State power is limited by requirements tied to incorporated protections, such as:
Limits on unreasonable searches and seizures
Procedural safeguards during interrogation and prosecution
Trial-related guarantees that shape courtroom practice and state criminal codes
These constraints can increase administrative costs for states and reduce flexibility, but they also standardise baseline protections regardless of state politics.
Speech, religion, and expressive activity
Once expressive rights are incorporated, states may not:
Punish protected speech simply because it is unpopular
Structure public rules that discriminate against particular viewpoints
Enforce religiously biased rules that burden protected conduct beyond constitutional limits
States can still pursue public order, but they must do so with regulations that survive constitutional review rather than relying on broad bans.
Civil remedies and enforcement power
Incorporation also affects the enforcement tools states can use. Even when a state has a legitimate goal, it may be restricted in:
The penalties it imposes
The procedures it uses to reach decisions
The evidence it may rely on if obtained unconstitutionally
The degree of discretion given to officials if it creates arbitrary or discriminatory enforcement
What states can still do (and why incorporation is not total national control)
Incorporation limits state power, but it does not eliminate it. States often retain room to govern because:
Not every claimed liberty is treated as incorporated in the same way.
Many incorporated rights allow regulation under certain conditions (states can regulate, but not violate the constitutional floor).
States may provide more protection under state constitutions than the federal baseline, but they cannot provide less than what federal incorporation requires.
Key federalism effect
Incorporation shifts the balance toward national constitutional supremacy over state experimentation in civil liberties. It turns many disputes—especially about policing and individual rights—into constitutional questions ultimately shaped by the Supreme Court, not only by state voters and legislatures.
FAQ
Yes. Local bodies are treated as exercising state authority for constitutional purposes.
Practically, incorporated rights restrict school boards, police departments, and councils as “state action”.
Yes. States may create a higher rights baseline.
However, they cannot undercut the federally required minimum created by incorporation.
Modern doctrine largely relies on due process because of historical precedent.
Shifting clauses would require major doctrinal change and is politically and judicially contested.
Not total. Other constitutional provisions and state constitutions may still constrain the state.
But the specific federal Bill of Rights guarantee would not automatically bind the state.
It narrows experimentation where a policy touches incorporated liberties.
States can still innovate in areas not constitutionally fenced off, or by designing rights-respecting alternatives.
Practice Questions
(2 marks) Explain how selective incorporation limits the power of state governments.
1 mark: Identifies that incorporated Bill of Rights protections apply to states via the Fourteenth Amendment.
1 mark: Explains that states cannot enforce laws/policies that violate those incorporated protections.
(6 marks) Analyse two ways incorporation constrains state policymaking and enforcement, and describe one remaining area of discretion for states.
2 marks: First way explained (e.g., state criminal procedure/policing must meet federal constitutional standards; unconstitutional laws/convictions can be overturned).
2 marks: Second way explained (e.g., speech/religion regulations must stay within constitutional limits; broad or discriminatory restrictions can be invalidated).
2 marks: One area of discretion described (e.g., states may regulate within constitutional bounds or provide greater protections under state constitutions).
