United States Constitution

With the passage of the 14th Amendment, however, and the recognition of
Substantive Due Process rights housed within that amendment, the notion that the first ten amendments served to protect individuals against only overreaches of the federal government was undone. As the Due Process Clause of the 14th Amendment became the source of various other rights that were inherent to our system of freedoms and liberties, it also became the channel through which the amendments in the Bill of Rights became applicable to the states as well.

Two general schools of thought emerged as to how this should be done. Uniquely championed by Justice Hugo Black in the mid-20th Century, one approach was so-called “Total Incorporation.” Meaning, each one of the first eight amendments (the 9th Amendment and the 10th Amendment do not directly concern specific individual liberties) should be automatically and completely considered to be applicable to the states. This approach, however, did not garner support among Justice Black’s fellow Justices. Instead, from both before Justice Black, and since, the Court has engaged in what has become known as “Selective Incorporation.”

Under this approach, the Court examines the specific right being asserted by a litigant against a state and examines it under much the same (of not an identical) analysis as the Court considers an altogether separate implied fundamental right (see Substantive Due Process), like the right to privacy. If the rights guaranteed by the amendment are deemed so fundamental that an infringement of them by a state would be anathema to our system of liberties, then that right is incorporated by the 14th Amendment and is applicable to the states.

However, though the Total Incorporation approach has been conceptually rejected, in the century of Selective Incorporation, many – if not most – of the rights guaranteed by the first eight amendments have been brought to bear on the states by the Supreme Court.

The Establishment Clause which prevents the government from establishing religion) of the 1st Amendment, for example, was not incorporated until 1947, in Everson v. Board of Education. In that case, a lawsuit was brought challenging a New Jersey law which allowed public money to be used for school buses that transported children to and from both public and private schools. Ultimately, the Court decided that New Jersey was not in violation of the Establishment Clause. But still, the very consideration of the issue made it so that clause, formerly only applicable to the federal government, was now also applicable to the states.

Another recent and high profile example of Selective Incorporation took place in the Court’s decision in McDonald v. Chicago (2010). There, Chicago gun regulations were challenged as violations of the 2nd Amendment, the amendment that protects an individual’s “right to bear arms.” Again, the Court used the Due Process Clause to make the amendment, formerly applicable only to the federal government, now applicable to the states as well.