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by ChrisDC on June 12th, 2009
The Fifth Amendment to the U.S. Constitution guarantees the right of U.S. citizens to the due process of the law and the equal protection of the law. To put it simply, it means 1) that fundamental rights cannot be burdened without a compelling reason, and (substantive due process) and 2) that burdens on fundamental rights must be accompanied by some procedure sufficient to ensure they are not unnecessarily or arbitrarily denied (procedural due process).
The Fifth Amendment after its enactment was seen as limiting the actions of the federal government, not state government.
The 14th Amendment was one of the amendments enacted after the Civil War. It extended the requirements for equal protection of the law and for due process rights to the state.
As subsequent Supreme Courts have interpreted what the 14th Amendment means, they could have simply said all the rights contained in the U.S. Constitution must be respected by the states. Instead, they looked at whether a particular right or guarantee in the U.S. Constitution rises to the level that a state cannot ignore it or abrogate it -- and did so on a case-by-case basis.
For example, federal prohibitions on the establishment of an official religion have been "incorporated" into the Court's interpretation of rights that are protected against actions by states by the 14th Amendmenment.
On the other hand, the Second Amendment's right to bear arms (setting aside the "well-regulated militia" has not been held to apply to the states.
Which is the reason for the term "selective" enforcement. Think of federal constitutional guarantees as a checklist -- the Court has applied them to state action on a case-by-case basis.
I've reviewed this wikipedia article on the subject, and it's got a good summary of the relevant cases.
http://en.wikipedia.org/wiki/Selective_incorporation
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