Question

Give three example of issues that have been affected by selective incorporation?

Answer 1

Selective incorporation is a doctrine in the American Constitution which protects the citizens of the country from their states’ enacting of laws that could infringe upon their rights. It is not a law, but a doctrine that has been established and confirmed time and again by the United States Supreme Court. We could say essentially, selective incorporation enables the federal government to place limits on the states’ legislative power.

The examples of issues that have been affected by selective incorporation are freedom of speech, keeping a handgun or other weapons by a person, or even abortion or termination of pregnancy.

In McDonald v. Chicago (2010) case in which the Second Amendment right to “keep and bear Arms” was incorporated to the states. The City of Chicago passed a handgun ban in 1982; Chicago resident Otis McDonald filed a lawsuit challenging the ban in 2008 on the basis that he needed a handgun for self-defense. The Court then declared the handgun ban unconstitutional by a 5-4 majority, ruling that the Second Amendment right to bear arms for self-defence is fundamental, and therefore incorporated to the states through the Fourteenth Amendment’s due process clause.

The case of pregnancy ( Roe v. Wade (1973) ) - Norma McCorvey, in the court proceedings, wished to terminate her pregnancy but found she could not do so safely or legally in the state of Texas. In the resulting Supreme Court case, the Court ruled that a woman’s decision to have an abortion in the first trimester of pregnancy was protected by the constitutional right to privacy which is incorporated to the states, and that it was therefore unconstitutional for a state to criminalize all abortions.

The case of freedom of speech ( Tinker v. Des Moines Independent Community School District (1969) ) - Iowa students Mary Beth Tinker, her brother John, and their friend Christopher Eckhardt were suspended from their public high school for wearing black armbands to protest the Vietnam War. In the resulting case, the Supreme Court ruled that the armbands were a form of symbolic speech, which is protected by the First Amendment and applicable to all levels of government, and therefore the school had violated the students’ First Amendment rights.