Analyze the difference between an amendment that is fully incorporated and one that is partially incorporated
In constitutional law, the concept of incorporation refers to the process of applying the protections in the U.S. Constitution's Bill of Rights to the states through the Fourteenth Amendment's Due Process Clause. This means that the Supreme Court has gradually held that certain rights enshrined in the Bill of Rights are applicable to the states and their residents, providing them with the same level of protection against infringement by state governments as they have against the federal government.
Now, let's analyze the difference between a fully incorporated and a partially incorporated amendment:
1. Fully Incorporated Amendment:
A fully incorporated amendment refers to an amendment that has been construed by the Supreme Court as being fully applicable to the states, providing the same level of protection to individuals against state infringement as it does against federal infringement. The Supreme Court has held that certain provisions of the Bill of Rights, such as the First Amendment's guarantee of free speech, religion, and assembly, the Fourth Amendment's protection against unreasonable searches and seizures, and the Sixth Amendment's right to a fair trial, are fully incorporated. This means that individuals can invoke these rights against state governments, and states must adhere to the same constitutional standards as the federal government.
2. Partially Incorporated Amendment:
A partially incorporated amendment, on the other hand, refers to an amendment that has been interpreted by the Supreme Court as being only partially applicable to the states, meaning that it provides some, but not all, of its protections to individuals against state infringement. The Supreme Court has found that certain provisions of the Bill of Rights, for example, the Second Amendment's right to bear arms and the Fifth Amendment's protection against self-incrimination, are partially incorporated. This means that although the amendment grants some protection against state infringement, states may have more leeway in regulating or restricting these rights compared to the federal government.
The distinction between fully and partially incorporated amendments arises because the Supreme Court has applied a selective incorporation approach. This approach means that the Court has decided on a case-by-case basis whether specific rights contained in the Bill of Rights should be incorporated against the states, based on their interpretation of the Fourteenth Amendment's Due Process Clause. Consequently, different amendments have been incorporated to different extents, leading to a difference in the level of protection they afford against state infringement.
Overall, the difference lies in the scope of protection offered by the incorporated amendments, with fully incorporated amendments offering the same level of protection against both federal and state infringement, while partially incorporated amendments provide a more limited level of protection against state infringement.