AP U.S. Government and Politics 3.7: Selective Incorporation

The Bill of Rights originally constrained the national government. State and local governments did not become subject to all ten amendments merely because the amendments existed. After the Civil War, the Fourteenth Amendment created additional constitutional limits on states. Its Due Process Clause says that no state may deprive any person of life, liberty, or property without due process of law. Source: National Archives, Fourteenth Amendment, Section 1.

Selective incorporation is the doctrine applying particular protections from the Bill of Rights to the states through that clause. A court identifies a particular guarantee as fundamental and treats the protected liberty as limiting state action. The word selective matters: incorporation developed protection by protection through decisions, rather than one decision automatically applying every provision identically.

Original example: a resident challenges a local government’s restriction on a protected liberty. Two questions arise. What is the underlying guarantee? What makes that guarantee apply to this government actor? The First or Second Amendment can identify the substantive protection, while the Fourteenth Amendment supplies the incorporation bridge. Neither question replaces the other.

McDonald v. Chicago (2010) connects the Second Amendment’s arms protection, Heller’s individual-right interpretation, and the Fourteenth Amendment’s application to state action. Chicago and Oak Park residents challenged local handgun restrictions. The issue was whether the right recognized against the federal District of Columbia in Heller also bound state and local government. The Court held that it did, reversed the lower judgment, and remanded. Source: McDonald v. Chicago, 561 U.S. 742 (2010).

The controlling majority portions treated the right as fundamental to ordered liberty and deeply rooted in American history and tradition. Four justices applied that right through the Due Process Clause; Justice Thomas agreed with application through the Privileges or Immunities Clause. Do not describe those two routes as one unanimous rationale.

To explain the case’s relationship to a foundational document, do more than name the Constitution. Explain how the Second Amendment identifies the right and how the Fourteenth Amendment provides the framework for applying protection to a state or local actor. That connection explains why the defendant city could not avoid the constitutional question by calling handgun regulation a local matter.

Incorporation imposes a national constitutional floor on state and local regulation of civil liberties. State officials remain responsible for many public policies, but they must exercise those powers within incorporated constitutional protections. The doctrine changes the legal limit on their action, rather than transferring every state function to Congress.

Original comparison: a federal rule restricting a protected liberty and a city rule restricting the same liberty can both face constitutional review. The federal restriction directly implicates the Bill of Rights; the city restriction requires attention to the Fourteenth Amendment’s incorporation framework. Different actors can be bound by the same substantive protection through different constitutional routes.

The Due Process Clause is also different from the Equal Protection Clause, although both appear in the Fourteenth Amendment. Incorporation concerns applying particular liberty guarantees to state action. Equal protection concerns government classifications and treatment. Do not use the phrases interchangeably. A strong explanation traces right, government actor, constitutional bridge, and resulting limit. It preserves the distinction between applying a protection to a state and deciding whether every particular regulation violates that protection.