The Constitutional Doctrine Of Selective Incorporation

The originally Bill of Rights protected the rights of citizens from infringement by the federal government, but made no mention of the states. The Fourteen Amendment, adopted shortly after the Civil War, protected citizenship and individual rights from infringement by state governments. Under the Fourteenth Amendment’s due process clause, the United States Supreme Court began to apply the most important rights guaranteed in the Bill of Rights against the states. This process began in the early 1900s and is known as the doctrine of selective incorporation. Duncan versus Louisiana was the landmark case in which the court incorporated the Sixth Amendment right to a jury trial against the states.

This doctrine of selective incorporation enforced the inclusion of the right to a speedy trial within the Fourteenth Amendment, just as it did with the other rights included in the Bill of Rights. The Fourteenth Amendment itself ensures the enforcement of this basic right and makes it applicable to the states (Tokarev, 2012). That being said, no state can deny this right to any individual because it is a basic right guaranteed by the Due Process Clause of the Fourteenth Amendment, as well as written within the Sixth

On September 17, 1787 framers in Philadelphia signed “The Constitution of the United States in which it was approved on June 21, 1788 by the ninth state. Once confirmed, along with the addition to the Bill of Rights it developed a mutual standard by which Americans determined the responsibilities and limits of their government. Looking to the Constitution to decide political discrepancies has helped to substitute and preserve a general agreement among people that are otherwise diverse. The Constitution, although two centuries of complications and trials of the American experiment in self-government, is a testament to the cleverness and anticipation of its framers.

The Articles of Confederation, Adopted by Congress on November 15, 1777, for all practical purposes was the United States’ first Constitution. Created to establish a bond between the newly formed states, “...the Articles purposely established a "constitution" that vested the largest share of power to the individual states” (Early America). This ensured that the government did not have the majority of power. “...the Articles denied Congress the power to collect taxes, regulate interstate commerce and enforce laws...allowing the states retained their "sovereignty, freedom and independence” (Early

The Constitution has been operative since 1789 after the ratification of nine states (American Vision and Values, Page 52). Today many question the relevancy of a document 222 years old to our society. The Founders created a governmental framework, defining three branches and giving powers to the government and others to the states. It also guarantees the rights of the people. It took two and one-half years for the 13 colonies to ratify the Constitution. This ratification period was one of great debate and produced a series of essays complied into The Federalist. Authored by John Hamilton, James Madison and John Jay during the ratification debate in New York, they tried to get public support for the Constitution. Thus began the first

In 1776, the Declaration of Independence, drafted by Thomas Jefferson, was formally adopted. The American Revolution had already been going on with the battles of Lexington and Concord over a year prior, but the first government of the United States is the Articles of Confederation, a constitution based on Republican ideas and democracy. The Continental Congress approved the Articles of Confederation in 1777. It was adopted, written by John Dickinson, but there was a delay in ratifying it by the states. States like Virginia and Massachusetts had claimed a bunch of land stretching from the East Coast all the way to the Pacific Ocean as part of their colonial charters. States like Maryland and Pennsylvania, who did not have these land claims, did not want to ratify this new national government until the land is relinquished. It was not until in 1781 when the states officially ratified the Articles of Confederation. From 1781 to 1789, the Articles of Confederation failed and had created problems in political, economic, and foreign policies, making this new national government an ineffective government.

Created on November 15, 1777 and ratified by the first 13 colonies on March 1, 1781, the articles of confederation is known for being the first constitution of the united states. “The constitution provides a division of powers, meaning it assigns certain powers to the national government and reserves others for the states.” (crouse, slide 4) The constitution is needed because if we didn't have it the government would be weak and would most likely have no power. Framers of the constitution chose a system of government on a territorial basis, between a central government and several states. “ the framers were worried about the government being too powerful because; government power inevitably poses a threat to individual liberty. Therefore the

The Fourteenth Amendment to the Constitution of the United States is perhaps the most sweeping and has likely impacted the general jurisprudence of the Supreme Court the most of any other amendment. This is because, where all other right-protecting amendments protect something specific, the fourteenth amendment was designed to ensure that states guaranteed due process rights, applied the law equally, and protected the “privileges [and] immunities of citizens of the United States.”

Selective Incorporation is basically a concept of taking specific parts of the Bill of Right and apply them to the States and local government, on a case by case basis. And That was after the Civil War (1868), when the 14th amendment was past and it has in it two famous clauses which are the ‘due process clause” in which the states can’t be working by a different standard then the National Congress, and the equal protection clause which people have to be protected equally from the Congress and the States government.

This statement encapsulates why the framers of the Fourteenth Amendment found it necessary to include that, “No state shall…deny to any person within its jurisdiction the equal protection of the laws.” Bingham’s reading of the Constitution already incorporated this point, but Rogers’ certainly did not, so by placing it in the Fourteenth Amendment, the framers ensured beyond all doubt that the right of all citizens to equal protection of the laws would be part of any subsequent reading of the Fourteenth Amendment.

The Articles of Confederation became the first guiding principles of the original thirteen states. However, the weaknesses embedded in the articles became obvious, outweighing its positive impact and they were ratified in 1781. George Washington sated that the articles were "little more than a shadow without the substance."1 They limited the central government’s ability to work smoothly and adversely affected the economy. Lack of power left the government in dismay and they sought a fix to their problems without becoming a tyrannical monarchy. The founding fathers believed that replacing the articles with The Constitution was the best way to give the central government enough power to carry out its tasks. In 1787 delegates from all 13 states met in Pennsylvania to begin amending the articles. This process revealed many of the similarities and differences that were contained within The Articles of Confederation and The Constitution.

Before the constitution became the law of the land there was the Articles of Confederation. The Articles of Confederation was the first constitution of the United States, and the first form of government established by the U.S. Under the Articles of Confederation the government consisted of a congress of delegates chosen by state legislatures. Congress was also unicameral, or a single house legislature. Each state had the same amount of power regardless of size or population. The powers to make, administer, and enforce laws were all placed with Congress. The government did not consist of a President or executive branch, instead the executive power was spread among several committees of congressmen. The articles granted certain limited powers to Congress. The Congress could not raise money through taxes, therefore it relied on contributions from the states, which was not reliable. Passing laws required approval of at least nine of the thirteen states, and amending a document required approval of all thirteen states. Congress had no power to regulate trade between the states or internationally. There was no national army, so the government relied on the individual states to establish a military.

     In the hot, humid summer of 1787 state delegates met for the Constitutional Convention in Philadelphia and drafted a new frame of government for the United States: the United States Constitution. A new federal system of government was set forth which distributed powers between the state and federal government and created three branches of government as checks and balances for each other. The new Constitution also gave the new government the power to both tax and regulate commerce.

An understanding of the Fourteenth Amendment begins not in Congress, but in the history leading up to the Civil War. The first crucial story in understanding the Fourteenth Amendment is the striking changes in the law of race relations that took place in the North - especially in Bingham’s home state of Ohio - in the dozen or so years before the Civil War began. The second story is about the South, and the legal repression and brutal racial violence that took place there immediately after the Civil War ended (Finkelman, 2003).

After the Revolution, the States adopted their own constitutions, many of which contained a Bill of Rights. The Americans still faced the challenge of creating a central government for their new nation. In 1777 the Continental Congress adopted the Articles of Confederation, which were ratified in 1781. Under the Articles, the states retained their “sovereignty, freedom and independence,” while the national government was kept weak and inferior. Over the next few years it became evident that the system of government that had been chosen was not strong enough to completely settle and defend the frontier, regulating trade, currency and commerce, and organizing thirteen states into one union.