Selective Incorporation

Selective incorporation is the way in which the federal government interpreted the 14th Amendment and how much of the Bill of Rights should be applied to the states. The 14th Amendment granted national citizenship, so it caused people to question whether a person could now be protected under the Bill of Rights from state actions. American federalism slowed down the process of incorporation significantly because it undermines the power of the states. If the same limits are placed on all states, then there is no longer any diversity among states. This is why only parts of the Bill of Rights were incorporated when it was deemed necessary. In the case of Barron v. Baltimore, the Supreme Court decided that the Takings Clause of the 5th Amendment did not apply to the actions of a state. Thus, the 5th Amendment was not incorporated, and it only applied to actions of the federal government. The case of Gitlow v. New York, however, incorporated the 1st Amendment (free speech specifically). The Court decided that freedom of speech was a fundamental right, so it was incorporated. Finally, in the Palko v. Connecticut case, the issue of double jeopardy was deliberated. Palko had been sentenced to life in prison, but he was then given the death penalty after a second trial. The court decided that double jeopardy was fair and did not incorporate this portion of the Bill of Rights. As you can see, the Court is very unpredictable in its decisions to selectively incorporate the Bill of Rights to apply to the states.