What is selective incorporation?

Question

I've looked this up online, and I can't really understand anything I've found. It's all pretty confusing. I don't really understand what it means for the Supreme Court to make rights applicable to the states. I thought that everyone has the rights listed in the Bill of Rights, regardless of whether or not the Supreme Court decides they do. Am I completely missing the point? Can someone explain this to me in colloquial terms? Thanks.

Answer 1

Well, the answer lies in to whom the Federal Constitution (and Bill of Rights) applied. Originally, the Constitution and Bill of Rights were binding on the federal government - NOT the states themselves.

So, while states would have their own laws protecting free speech, for example, you couldn't sue the STATE for suppressing speech under the 1st Amendment of the Federal Constitution, you'd have to sue under the state constitution. The federal Constitution and Bill of Rights only prevented the federal government from acting in certain ways.

That changed with the 14th Amendment, which was binding on the states themselves. Beginning at that point, the courts began applying protections from the Bill of Rights to the states as well as the federal government.

However, not all rights protected in the federal Constitution were retroactively made binding on the state governments, only some of the rights. In other words, not all of the Bill of Rights was incorporated as binding on the states, but only select rights.

To put it another way, originally, everything in the Constitution only bound the federal government - so that the FEDERAL government couldn't do anything prohibited in the Constitution or Bill of Rights. But after the 14th Amendment, the courts have held that certain rights spelled out in the Constitution are binding on the states as well as the federal government, including the right to free speech, as an example. Those earlier amendments from the Bill of Rights that now bind the state governments just like the federal government were selectively incorporated into the 14th Amendment's provisions.