Selective Incorporation - Essay Example

Selective Incorporation Selective incorporation Selective incorporation is a constitutional application of the provisions of the 14th amendment in which due process is applied to the bill of rights in a case-by-case basis. In selective incorporation, all the rights that are contained in the first eight amendments to the united states constitution and which are considered fundamental in the liberty of the citizens are incorporated within the 14th amendment. Though the selective incorporation is no law contained in the country’s constitution, it has been established through precedents in cases and rulings of the United States Supreme Court. The fundamental doctrine of selective incorporation results into the limitation of the federal government powers in the legislative agenda (Gedicks 672). History of selective incorporation The development of selective incorporation can be traced to the legislative growth of the United States immediately after independence. The thus insisted that this restriction had to be recognized before the constitution could be signed into law to operate within the country. Consequentially, state governments could not be prevented from limiting the rights that are guaranteed in the constitution unless a new law was developed. In this amendment, states were prevented from enacting new laws that would limit the rights that the supreme constitution grants the citizens. Following the enactment of the 14th amendment, the United States Supreme Court made a ruling that touched on its provision and that of selective incorporation (Gedicks 672). In this case, a slaughterhouse conflict in New Orleans was mitigated to eliminate the monopoly enjoyed by one of the houses. After the first ruling in New Orleans, further cases within the Supreme Court were made which expanded the selective incorporation doctrine. Importance of selective incorporation in the protection of human rights Selective incorporation has been applied in numerous instances to protect and uphold human rights especially in a criminal proceeding. This was done during the tenure of chief justice Earl Warren when the rights enjoyed by the criminal defendants were expanded. For example, in the case of Gideon v Wainwright, the defendant was accused of breaking into bay harbor pool hall and stealing cigarette change from the vending machines (Gedicks 672). Though Gideon requested a lawyer to be appointed by the states, the state of Florida declined, stating that this can only be done in capital offenses. However, the Supreme Court ruled that the 14th amendment allowed all defendants to access the services of an attorney. This right, as stated in the sixth amendment of the constitution was meant to protect the rights of the accused and ensure the provision of free trails. The Miranda v Arizona established the principle of equal access to legal representation during trial and the determination was based on selective incorporation. Failure to inform a suspect of his right during arrest constitutes legal subjugation of their legal rights as contained in the first 8 amendments and the 14th amendment of the United States constitution. the 5th amendment of the united states indicate that a suspect has a right to remain silent during arrest as any pronouncement made can be used against them in the determination of the case (Gedicks 672). The sixth amendment on the other hand indicates that a legal counsel must represent suspects during determination of their cases. In this case, the Supreme Court indicated that the state governments had the power to curtail the freedom of the citizens as long as it portends disturbance to public peace and speech. Despite the freedom of speech and freedom, the press cannot be allowed to publish anything that can violate the peace and freedom of other people (Gedicks 672). In Tinker v Des Moines case, the Supreme Court indicated that schools cannot be allowed to enslave children within the confines of the schools without respecting their individual freedom to enjoy various rights. In the case, the school was accused for violating the right of the students to wear black band with peace messages while in the school compound. In near v Minnesota, the Supreme Court overturned the determination of the state courts and indicated that censorship of the freedom of press and speech can only be done in exceptional situations. In Palko v Connecticut, the Supreme Court indicated that all the other bill of rights is to be applied to all states and the provisions of the 14th amendment determine this. Any amendment that is incorporated into the constitution must thus be done in a way that ensures that the rights of the people are not curtailed. In Engle v Vitale, the Supreme Court indicated that prayers done in private buildings for extended period are constitutional and violate the establishment clause. As a result, religious leaders must exercise restraint in the process of promoting religion, as voluntary process is impermissible in the United States. In Mapp v Ohio, the court indicated that the process of acquiring evidence must not contravene the rights of the accused. Any evidence presented in court that is obtained in an illegal manner is inadmissible and cannot be used in the determination of the case (Gedicks 672). The precedent for judicial review as a role of the Supreme Court was instead set in the Marbury v Madison case and decisions made by in the end. In this case, the supreme acted as referee in the constitutionality of the case that was brought before it and this gave it the check and balances power despite lacking in constitutional support for the same. Candidates for presidential elections and other elections in the United States are done through the different political parties in the country. Parties like the democrats and the republican have continued to play a dominant role in the United States election despite lacking in the written constitution of the country. The origin of the use of the political parties in the election discourse of the country has been questioned and the possibility of having elections without the political parties input questioned. However, as a precedent that was set during the 18th and 19th centuries, the use of political parties in elections has become a common law that practiced across the board. According to a Supreme Court judgment that was made in 1891, the rights of privacy were extended to various other areas including the activities of relationship, procreation, child bearing and education. This was not covered under the constitution yet the Supreme Court set it as a precedent through this landmark ruling. For example, in Griswold v Connecticut, the Supreme Court determined that the constitutional rights to privacy of the American citizens included their rights to make decision to birth control methods and their applications Work Cited Gedicks, F. (2013). Incorporation of the Establishment Clause against the States: A Logical, Textual, and Historical Account. Indiana Law Journal, 88(2), 669-722. Read More