Understanding the Foundation of Selective Incorporation

The doctrine of selective incorporation stands as one of the most significant constitutional mechanisms in American jurisprudence. It answers a fundamental question: which provisions of the Bill of Rights restrict state governments, not just the federal government? Before the Fourteenth Amendment, the Bill of Rights applied only to the federal government, as confirmed by Barron v. Baltimore (1833). The amendment's Due Process Clause, ratified in 1868, created the legal pathway for extending these protections to the states. However, the Supreme Court did not immediately embrace full incorporation. Instead, it adopted a piecemeal, case-by-case approach known as selective incorporation.

This approach has been shaped by deep ideological divisions among justices. The process is not mechanical; it requires interpreting the Fourteenth Amendment’s phrase “nor shall any State deprive any person of life, liberty, or property, without due process of law” to determine which rights are “fundamental to the American scheme of justice.” That determination depends heavily on each justice’s judicial philosophy. The result is a patchwork of incorporated rights—some fully applied, others only partially, and a few still left to state discretion.

How Judicial Philosophy Drives Incorporation Decisions

Judicial philosophy provides the lens through which justices read ambiguous constitutional text. On the Supreme Court, disagreements over selective incorporation often reduce to competing views about the nature of liberty, the role of history, and the proper relationship between federal and state power. Three major philosophical frameworks consistently influence these decisions: originalism, textualism, and the living Constitution approach. A fourth, pragmatism, also appears in compromise rulings.

Originalism and the Limits of Incorporation

Originalists argue that the Constitution should be interpreted according to its original public meaning—what a reasonable person at the time of ratification would have understood the text to mean. Applied to selective incorporation, originalists tend to be skeptical of expanding rights beyond those that were clearly intended by the framers of the Fourteenth Amendment. Justices such as the late Antonin Scalia and Clarence Thomas have often taken this view. They ask: Did the ratifiers of the Fourteenth Amendment intend to absorb the entire Bill of Rights? Most originalists say no. As a result, originalist opinions frequently resist incorporating rights that lack a clear historical foundation. For example, Justice Thomas has argued that the Second Amendment applies to the states not through the Due Process Clause but through the Privileges or Immunities Clause—a more historically grounded path—while simultaneously opposing the incorporation of certain criminal procedure rights he views as not deeply rooted.

This philosophy also creates a tension. While originalism can limit incorporation, it can also demand incorporation if historical evidence shows the framers intended a particular right to apply against the states. In McDonald v. Chicago (2010), Justice Thomas concurred with the majority that the Second Amendment applies to the states, but he relied on the Privileges or Immunities Clause, not substantive due process, because he believed that clause originally incorporated fundamental rights.

Textualism and the Search for Plain Meaning

Textualism, closely related to originalism, emphasizes the plain text of the Constitution as the primary source of interpretation. A textualist justice will examine the words of the Due Process Clause and ask whether the clause itself contains any language about specific rights. Because the clause does not list the Bill of Rights, textualists often conclude that the text alone does not mandate full incorporation. However, they may still accept incorporation if precedent, such as Gitlow v. New York (1925) or Gideon v. Wainwright (1963), has created a settled body of law. Justice Elena Kagan, while not a strict textualist, has noted that stare decisis heavily constrains any effort to overturn incorporation precedents.

Textualists also tend to prefer a narrow, almost technical reading of which rights are “fundamental.” They avoid broad psychological or sociological tests like the “shocks the conscience” standard, favoring instead a historical determination of whether the right is deeply rooted in the nation’s traditions. This approach produces cautious incrementalism in incorporation decisions.

The Living Constitution and Expansive Incorporation

Proponents of the living Constitution view the document as a dynamic framework that must adapt to evolving societal values. This philosophy encourages justices to interpret the Due Process Clause as a vehicle for protecting emerging concepts of liberty. Justices such as William Brennan, Thurgood Marshall, Stephen Breyer, and Ruth Bader Ginsburg have articulated this view. In selective incorporation cases, this often means arguing for full incorporation of all Bill of Rights protections—and even some unenumerated rights—as necessary for ordered liberty in a modern society.

The landmark case Roe v. Wade (1973) exemplifies the living Constitution approach, though it did not involve selective incorporation of a specific enumerated right. More directly, in Timbs v. Indiana (2019), a unanimous Court held that the Eighth Amendment’s Excessive Fines Clause applies to the states. Justice Ruth Bader Ginsburg’s opinion for the Court did not rely on originalist reasoning but on the doctrine that the right against excessive fines is fundamental to the American scheme of justice—an evolving standard. Living Constitution advocates also support incorporating rights related to privacy, marriage, and family under the umbrella of substantive due process, which effectively expands the scope of selective incorporation beyond the Bill of Rights itself.

Pragmatism and Case-by-Case Balancing

Some justices adopt a pragmatic approach, weighing the practical consequences of incorporation versus leaving a matter to the states. Justice Lewis Powell and Justice Sandra Day O’Connor embodied this style. In Garcia v. San Antonio Metropolitan Transit Authority (1985), the Court abandoned a formalistic approach to state sovereignty and adopted a more functional balancing test. In selective incorporation, pragmatists ask: Will incorporating this right improve the administration of justice? Will it unduly burden state resources? How much uniformity is needed across the nation? This approach often leads to moderate outcomes—incorporating a right but with qualifications. For instance, in Miranda v. Arizona (1966), the Court created a prophylactic rule that all states must follow, balancing individual rights against effective law enforcement.

Landmark Cases That Reveal Judicial Philosophy at Work

The evolution of selective incorporation can be traced through a series of decisions where competing philosophies clashed. These cases illustrate how a justice’s worldview directly affects whether a right is nationalized.

Gitlow v. New York (1925) – The First Step

In Gitlow, the Court assumed that the First Amendment’s free speech clause was incorporated through the Fourteenth Amendment, but it upheld the conviction because the speech in question was not protected. This initial incorporation was tentative. The majority opinion, written by Justice Edward Sanford, did not engage in deep philosophical reasoning; it merely assumed incorporation existed. Justice Oliver Wendell Holmes dissented, arguing that the state law failed to pose a “clear and present danger.” Holmes’s philosophy—pragmatic and skeptical of rigid categories—is evident: he would have applied a far stricter national standard to protect speech. The justices’ divergent views on how much power the states should retain versus a uniform national standard signaled the philosophical battle to come.

Mapp v. Ohio (1961) – Incorporation of the Exclusionary Rule

Mapp incorporated the Fourth Amendment’s protection against unreasonable searches and seizures and its accompanying exclusionary rule to the states. Justice Tom C. Clark’s majority opinion relied on the principle of deterrence and the need for a uniform remedy. The decision was a clear win for the living Constitution approach: the Court extended a right that had not previously been applied to states, reasoning that the integrity of the justice system demanded it. Justices John Marshall Harlan II and Felix Frankfurter dissented, arguing that the exclusionary rule was not a personal right but a judicially created remedy that should not be forced upon the states. Their philosophy—more restrained and respectful of federalism—reflects a narrower view of incorporation.

Gideon v. Wainwright (1963) – The Right to Counsel

Overruling a previous case (Betts v. Brady), the Court in Gideon held that the Sixth Amendment right to counsel is fundamental and applies to the states. Justice Hugo Black’s opinion for a unanimous Court used a “fundamental fairness” test. Black was a staunch incorporationist who believed the entire Bill of Rights should be incorporated. His opinion reflects that philosophy: he rejected the idea that states could experiment with different standards for providing counsel. The case is often cited as an example of how a justice’s overarching theory (Black’s “total incorporation” view) shapes the outcome.

Duncan v. Louisiana (1968) – Jury Trials

Duncan incorporated the right to a jury trial in serious criminal cases. Justice Byron White’s majority opinion emphasized that trial by jury is fundamental to the American criminal justice system. Justice Harlan dissented, arguing that the Due Process Clause only prohibits state actions that violate “fundamental principles of liberty and justice,” a standard he believed did not require jury trials in all cases. Harlan’s philosophy—often called “selective incorporation with independent state standards”—directly conflicted with the majority’s more sweeping approach. The case illustrates how philosophical differences produce different outcomes even when justices agree on the basic test.

The Role of the Fourteenth Amendment’s Privileges or Immunities Clause

An undercurrent in the debate over selective incorporation is the alternative pathway through the Privileges or Immunities Clause of the Fourteenth Amendment. In Saenz v. Roe (1999), the Court used the clause to protect the right to travel. Some originalists and textualists argue that this clause, not the Due Process Clause, was intended to incorporate the Bill of Rights against the states. They point to the Slaughter-House Cases (1873), which gutted the clause, as an error that should be reconsidered. If the Court were to revive the Privileges or Immunities Clause as the primary incorporation mechanism, it would dramatically shift judicial philosophy’s role. Originalists would have a clearer textual basis for incorporation, while living Constitution advocates might lose the flexibility of substantive due process. This debate remains academic for now, but it highlights how philosophical commitments can lead justices to prefer one clause over another.

Current Controversies and the Future of Selective Incorporation

In the 21st century, the Court has nearly completed the process of incorporating most of the Bill of Rights. The Third Amendment remains unincorporated, largely because it is rarely litigated. The Second Amendment was incorporated in McDonald (2010). The Eighth Amendment’s excessive fines clause was incorporated in Timbs (2019). Yet philosophical disputes continue over the scope of incorporated rights. For example, in Ramos v. Louisiana (2020), the Court held that the Sixth Amendment requires a unanimous jury verdict in state criminal trials. Justice Neil Gorsuch wrote a textualist opinion relying on history and the original meaning of the jury trial right, while Justice Brett Kavanaugh concurred based on precedent and fairness. Justice Samuel Alito dissented, arguing that the Court was elevating federal uniformity over state experimentation—a classic federalism concern.

Another emerging area is the incorporation of rights not explicitly listed in the Bill of Rights, such as the right to marry or the right to bodily autonomy. The Obergefell v. Hodges (2015) decision on same-sex marriage relied on substantive due process, which many critics argue is a form of incorporation by judicial fiat. Originalists like Justice Thomas have rejected this reasoning, asserting that the Due Process Clause does not protect unenumerated rights. The clash between these philosophies will likely define the next wave of incorporation debates, especially as the Court’s composition shifts.

Understanding the link between judicial philosophy and selective incorporation is not just an academic exercise. For teachers, it provides a framework for explaining Supreme Court rulings. For students, it clarifies why some rights apply uniformly across all states while others do not. For legal professionals, it helps predict how future cases might be decided. As the Court confronts questions about digital privacy (search and seizure in the age of smartphones), the Second Amendment outside the home, or the rights of criminal defendants, judges’ philosophical commitments will determine whether these rights are nationalized or left to state courts. A good starting point for deeper study is the Cornell Legal Information Institute’s overview of selective incorporation.

Teachers can use the contrasting opinions in Duncan v. Louisiana and Timbs v. Indiana to illustrate how justices with different philosophies arrive at different outcomes. Students should be encouraged to read the actual opinions to see how philosophical reasoning operates in practice. A helpful resource for comparing opinions is the official Supreme Court site, which provides full texts.

Conclusion: The Enduring Significance of Judicial Philosophy

Selective incorporation remains one of the most dynamic areas of constitutional law precisely because it touches on the core tension between federal power and state autonomy, between fixed meaning and evolving standards. Judicial philosophy serves as the compass that guides each justice through this thicket. Whether an originalist, a living constitutionalist, a textualist, or a pragmatist, the lens through which a justice views the Fourteenth Amendment directly shapes which rights become nationalized. As new societal challenges emerge—from artificial intelligence surveillance to reproductive technology—the same philosophical battles will be fought over what “liberty” and “due process” require. The history of selective incorporation is, in many ways, the history of American constitutional thought itself. By studying that history, we not only understand the past but also equip ourselves to participate in the ongoing debate about the meaning of the Bill of Rights in the 21st century.