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Selective Incorporation (1 Viewer)


Is this dry reading?

Selective Incorporation
When the Federalists denied the necessity of a Bill of Rights in the United States Constitution, they may have had been correct in their beliefs; however, the Anti-Federalists advocated having a Bill of Rights for the protection of individual freedoms from infringement from the national government. Federalists argued that such a provision was unnecessary, but in order to have the Constitution ratified they agreed to propose and ratify twelve amendments to the Constitution after it was approved by the states. The new Congress followed through with this promise and ratified ten of the twelve proposed amendments, and the rights of the people were secured from national government’s usurpation of those rights. The worry of the people was ill-placed though; the national government tends to remain distant from individual affairs when it comes to rights, but the state governments have taken measures that limit individual freedoms. In Barron vs. Baltimore, the Supreme Court ruled not to allow the Bill of Rights protections in the states, but later this case was overturned, and today these rights continue to be extended to the citizens and protected from abridgement by the states despite controversy that surrounds the national government’s approach to this insurance.

Despite Barron, the Supreme Court did rule in the landmark case of Gitlow vs. New York that the fourteenth amendment applies the Bill of Rights protections to citizens—even at the state level. Such a ruling is of paramount importance because it sets the national government’s standards as supreme; the states cannot create laws that would encroach upon rights that are guaranteed to the citizens by the Bill of Rights. In other words, this case further validated the national government’s position—namely, the Constitution—as the supreme law of the land through extending the fifth amendment’s due process rights to citizens at the state level. In Gitlow, the court brought certain all aspects of the Bill of Rights—except those found in the second, third, fifth, seventh, ninth, and tenth amendments—under protection from infringement by the states. In other words, through this “selective incorporation,” the Supreme Court states that the rights enumerated in the Bill of Rights are not exclusive to the federal and/or national arena—these rights are held at the state level and cannot be violated there either.

Other court cases provide examples of how the Bill of Rights protections are extended to citizens this concept of selective incorporation as well. In Bates vs. City of Little Rock, the freedom to associate, which is closely tied to the freedom to assemble, was brought into question. The Constitution grants citizens the right to assemble peaceably, but sometimes this right comes into conflict with larger, more sinister government intentions. During the Civil Rights Movement of the 1950s and 1960s such was the situation throughout the United States. Southern bigots at the state level sought to limit the power of African Americans through the usage of law, and oftentimes these issues came to the court of law where they were decided as either constitutional or unconstitutional. One such case in which this happened was in Bates. Here, the NAACP was required to disclose information about its membership in order to obtain tax-exempt status as a non-profit organization. The Supreme Court ruled that such a practice violates the members’ freedom of association and therefore their freedom to assemble as they see fit. This case was one of the first in many civil rights court cases. Through this case and the concept of selective incorporation, the Supreme Court overturned the Arkansas court’s ruling that the city of Little Rock could require membership lists, and through this action the court asserted itself as the ultimate interrupter of law and also validated the idea of selected incorporation—the extension of Bill or Rights protections to citizens at the state level.

This idea of selective incorporation and the supremacy of the national government to the state governments has, nonetheless, brought about some controversy. One issue involves something called “new judicial federalism.” Some people view the national government through the Constitution as stipulating a maximum limit on the rights that citizens possess. These people argue that the Constitution should in all actuality provide for a minimum of rights, and not a maximum. Despite this idea, the Constitution and the Bill of Rights remains the major safe, so to say, for the rights of United States citizens.

Rights are one of the fundamental principles of United States democracy. The framers of the Constitution did stipulate a few specific rights in the Constitution, but it is in the Bill of Rights that the rights that most Americans hold dear reside. Over the course of United States history, questions about the nature of these rights have come about, and the Supreme Court has risen to the occasion to secure these rights to all citizens, regardless of the level of government that is involved. Such actions help to continue allowing the United States to be “the land of the free.”


Senior Member
dry isn't necessarily bad, if that's what is called for... what is the purpose of the piece?... who do you intend to be the target audience?...


I was thinking about making this more interactive - perhaps adding it to a website or something and making several pages out of it. Pictures would be included of course.


Senior Member
It is dry, but not in a boring way. Just in a topic-specific kind fo way.

Although, I think it help to broaden it if you addressed where the concept of "natural rights" as it was taken by the 'framers' comes from. In fact, you may want to touch upon the roots of all democratic philosophy seeing as they weren't original ideas conceived by the founding fathers.
They too selectively incorporated certain philosophical ideas as the basis for the Bill of Rights.