Selective Incorporation

What AP Students Should Know

This week I am launching a series of blog entries that will cover the Bill of Rights and civil liberties lasting for the next several weeks. During this series, I intend on covering the important cases that students should be familiar with and the aspects of the Bill of Rights that could be covered on the AP Exam. I will do this in the order of the rights as given starting with the two aspects of religion, moving to free speech and ending eventually with the 10th Amendment. This week, however, before getting to the Bill of Rights itself, I wish to discuss the concept of Selective Incorporation and what the test taking AP student should understand concering this topic. In my opinion, this is putting the horse before the wagon!

As I have found over the years, the concept of Selective Incorporation can be tricky to teach. For the average 17 year old, the legal concepts are abstract and the constitutional arguments don't necessarily make a whole ton of sense. In my early years of teaching APGOPO, I was not particularly successful in getting the concepts through to the kids as seen in exam results. I have experimented with several approaches, and the following seems to be the most successful.

I begin my lesson on Incorporation with a discussion on why the Bill of Rights was written in the first place. We discuss the Anti-federalist fear of powerful national government, the individual states' Bills of Rights included in their own constitutions, and the Enlightenment foundations the Framers were working under during this period in history. For most of the students, this is a review of material that they learned in AP US History with slight augmentation. My main point in this time of discussion is that the Bill of Rights was intended to protect the citizens from the excesses of the national government, not from their respective state governments that were solidly founded in civil liberty.

I then move the discussion to Barron v. Baltimore (1833), the Marshall Court case that answered the question, "Should states be required to follow the national Bill of Rights in dealing with their citizen's civil liberties?" Marshall in his landmark decision said no, that under the original intention of the Framers the Bill of Rights was intended on securing the blessings of liberty from the national government and not the individual states.

Continuing this evolution of the concept, we then discuss the 14th Amendment and the equal protection and due process clause. Again, for most of the students this is not new information, just a new way of viewing the 14th. I stress that the 14th was the means by which the Federal government was forcing compliance of the Southern states following the Civil War during Reconstruction. The Amendment would also be used to extend the power of the national government over the states in other areas outside of civil rights, at times running contrary to the 10th Amendment.

From this point, I move the discussion to Gitlow v. NY (1925). This case was the first incorporation case in which the Court applied the 1st Amendment's free speech clause directly to a state. We take a short look at the specifics of Gitlow, but I stress to the students the critical nature of the element of incorporation over other case details. We also discuss the Court's refusal to incorporate all of the Bill of Rights, but choice to look at each of the individual rights on a case by case basis...thus Selective Incorporation.

To solidify these concepts, I ask the students to include in their study notes the evolution of the concept with the following headings: Framer's intent, Barron v. Baltimore, 14th Amendment, and Gitlow v. NY. If they can remember this short list of headings, they will have begun to master this difficult to learn doctrine.

Because many of the cases that are necessary for the students to learn are incorporation cases, setting up your civil liberties and civil rights units with a solid understanding of selective incorporation will get the ball rolling in the right court (pun intended!). Next week, I will begin to look at the First Amendment with the Establishment Clause. Until then...

Court Cases to Better Understand the Court

A Short List of Must Learn Cases

I would like to complete my discussion of the Supreme Court. For the last couple of weeks I have discussed resources for teaching and learning about the court (Jan. 25 blog), teaching the ideas and concepts behind judicial activism and judicial construction (Feb. 1 blog), and last week we discussed the personalities in the Court and resources for studying these folks. If you missed these discussion and are interested, scroll down the page. This week I would like to complete this discussion by addressing a short list of cases that are "must learn" cases for the students.

Here is the caveat: while this is a relatively standard case list agreed on by most AP Government and Politics teachers, I sometimes wonder if we don't spend too much time with these cases. Mind you, I am not saying don't teach them, or don't expect the students to have at least a cursory understanding of their basic concepts. What I am saying is we need to balance the time we spend on case studies with the other aspects of the Court. I have been to numerous AP seminars where discussions on the Court turn strictly to case studies. For the last few years, I have noticed a diminishing number of cases quizzed on the exam and have had my students report that they feel they spent too much study time on cases that never appeared on the test. Especially the historic cases!

That said, I still think that to understand the Court is to understand to some extent the major cases. So here is my short list of cases that I am now concentrating on and asking the students to remember.

The Marshall Court

1. Marbury vs. Madison...the case that established judicial review over Congress as the right of the Court.
2. Martin vs. Hunter's Lessee...established judicial review over state legislatures.
3. Fletcher vs. Peck...property rights
4. Dartmouth College...sanctity of contracts
   
5. McCullough vs. Maryland...the so called Bank Case that established implied powers of the federal government
6. Gibbons vs. Ogden...the so called Steamboat Case that established federal power over interstate commerce
7. Barron vs. Baltimore...limits the Bill of Rights to the actions of the federal government and not the state and local governments

The Taney Court

1. Dred Scott vs Sandford...defined citizenship excluding African Americans, declared slavery as property rights.

The Fuller Court

1. Plessy vs. Ferguson...the separate but equal doctrine established allowing legal segregation

The White Court

1. Schneck vs. US...the clear and present danger doctrine via Oliver Wendell Holmes
   

The Stone Court...

1. Korematsu vs. US...allowed the internment of the Japaneses during WW II

The Warren Court

1. Brown vs. BOE of Topeka, Kansas...ended the Plessy rule of separate but equal, called for the forced integration of public schools
2. Engle vs Vitale...declares school prayer unconstitutional under the 1st Amendment
3. Gideon vs. Wainwright...the right of an attorney in all state court cases
4. Reynolds vs. Sims...one man one vote in reapportionment cases
5. Miranda vs. Arizona...rights must be read to defendants at the time of arrest...combines Gideon, Escobedo, and Miranda to come up with famous "right to remain silent...".

The Burger Court

1. Bakke vs Regents of UC...affirmative action allowed but quotas not permitted.
2. Roe vs. Wade...legalized abortion based on the 4th Amendment
3. Gregg vs. Georgia...death penelty allowed with the model of two trials...one for guilt and one for sentencing used.

Rehnquist Court

1. Bush vs. Gore...allowed recount of votes in Florida in effect deciding the 2000 election

You don't see your "favorite" cases to study? Go ahead and add it, but these twenty cases are a hand full for the students to remember, and we haven't even started on the incorporation and Bill of Rights cases that are also "must know" cases.

Case study is sort of a turkey shoot for both teachers and students. Many of us old timers remember the year that Wolf v. Colorado case crashed upon a Free Response question. We had all taught Mapp v. Ohio and Weaks vs US, but very few of us had attempted to explained the Wolf case to our classes. Why did ETS pick Wolf over Weaks or Mapp for pity sakes? Who'da thunk???? Not me!

Fortunately, the question gave several case options for students to pick from, and they were able to avoid a conversation on Wolf (which would have been short and not very pretty). Most often, on the Free Response questions the students do have options on cases to write on so the above list is almost sure to cover those options.

In the near future I will be discussing incorporation and the cases linked to incorporation. I will also be discussing Bill of Rights cases that are important to cover. These, for the most part, are in addition to the above list, so don't walk away from this blog and wonder how I could miss the obvious. The list above are cases I discuss when explaining the Court; how one Court can differ from another, and how the Court has changed historically. Here is my rule in all of this case study: Don't overwhelm the students with too many cases!!! I'll have more to come on this subject. Until then.....

The Current Court

What Students Should Know About Our Court

When I meet with other AP Government teachers and we discuss the Judiciary and the Court, the topic always seems to come up of how much of the current Court we should expect the students to know. To the best of my knowledge, the multiple choice portion of the Exam has never had a question about current Court members, their ideology, their stance on judicial activism versus judicial restraint, or their views on strict versus loose construction. These topics may trickle into the Free Response questions, but in the past students could get by without specific knowledge of the current Court.

Still, I am an ardent believer that we must teach this information and incorporate it into our classes. While I have been accused of "teaching to the Exam" (guilty...isn't that our job after all?), a great deal of what I cover in my curriculum is information that every intelligent participant in our government should have in their repertoire. Having a cursory understanding of the Justices who make critical public policy is vital to understanding the policy they make. So, I spend a bit of time looking at the life, career, and beliefs of these men and women.

I will have each of my students research one of the nine current Justices and report out to the class on what they find. I give them some places to start, however information is not hard to come by on the internet. For pure biographical information, I like the Oyez site. The information is dependable and straight forward. For case information, the Cornell site is a quick and reliable reference. And of course, there is Wikipedia. We all have our opinions on Wikipedia, I have shared mine in the past. As far as the Court goes, I have found no serious errors, a plethora of quick references, and so-so discussions on Court topics. Trust Wikipedia? No, but it has it's uses for high school students. Caveat emptor...to say the least. Finally, and probably most importantly, the Supreme Court's own site is the first place to send the inquiring students.

As far as books go, last week I mentioned "The Nine" by Toobin. Clarence Thomas' autobiography "My Grandfather's Son" was interesting and insightful, "Scalia Descents" was an eye opening look into the judicial understandings of Justice Scalia, and Jan Crawford Greenburg had some interesting chapters in "Supreme Conflict". For a quick project, these are probably a bit much for the kids to digest. For teachers, they are great summer reads. I also found an interesting interview transcript with John Paul Stevens, the 60 Minutes interview with Justice Scalia was very interesting, as was an NPR story on Justice Breyer. The PBS Supreme Court series does not cover the current court, but it does look at the Rehnquist Court, which gives us a great deal of insight on the Roberts Court. If you have time, it is worth viewing or having the students stream at home.

The problem is not a lack of information on the Court, there is almost too much stuff out there for the students to digest. I am sure they will find many more useful sites that you can add to a list for future use.

Here is the thing about doing a unit on the current Court. If you are lacking on time in your course, this could be an area to cut. A brief mention and the information picked up in the textbook will probably suffice test-wise. If you have the opportunity, however, I would take a few days, get into the Court personalities, and bring the modern Court alive for your students. It is a side trip well worth the effort. Next week I want to focus on a few of the important cases that are a must know for the AP students. Until then...

More on the Judiciary

Restraint and Constructionism

Most of us agree that President Obama will be faced with two crucial decisions in his administration...the selection of two seats for the Supreme Court. I was just a lad when Justice John Paul Stevens was tapped for the Court. If you have forgotten, Stevens was President Gerald Ford's appointment. At 89, Justice Stevens will most likely leave the Court during the Democratic administration giving President Obama his first opportunity to appoint a Court seat.

Justice Ruth Bader Ginsburg could possibly also decide to leave the Court during the reign of Mr. Obama. While a youngster in Court years, her health combined with age (76) could result in an early retirement. Ginsburg also misses her friend and female colleague on the Court Sandra Day O'Connor and stands alone on many women's issues. Justice Ginsburg most probably would desire to see her replacement be a female and would most likely find Mr. Obama's choices more in line with her own ideologies and views of the Court. Neither Stevens or Ginsburg would want to risk their replacements in the hands of a future conservative GOP administration. I'm betting on their retirements in the next couple of Court terms.

So what are we teaching the students about the selection process that President Obama will utilize to narrow his candidates and make these critical appointments? One of the places to help us and the students gain insight into this process are the confirmation hearings of Justice Samuel Alito. The Alito confirmation was a textbook for the process! The discussions on the topic of judicial activism versus judical restaint were deep and insightful. Justice Alito, of course, professed a disdain for activism, rejecting the concept of the Court as a social engineer. His comments demonstrated the GOP attitude for restraint and conservative case determination.

The topic of constructionism is also found in these hearings. Just how should the Constitution be viewed? Is it a dynamic document bendable with the winds of social, political, and economic change? Or is the Constitution Hammarabi's Law; carved in stone, unchangeable and unflappable, setting principles that endure unchanged with time's ravages?

The Senate's grilling of Justice Alito, and Chief Justice Roberts before him, should give President Obama a clear picture of what to expect when his conformation battles begin. He will need to vet his selections carefully and while many of us foresee Obama candidates as activists and loose constructionist, those characteristics will need to be tempered to pass GOP Senate scrutiny. Without a filibuster blocking 60 votes, the process will be anything but automatic for Mr. Obama and his candidates.

Advanced Placement Exams have been interested in this process in the past years (for example, 2000 Free Response Question Number Two). Since College Board has a tendency to ask questions a year or two following the front page stories, and since we haven't seen a selection process question in almost a decade, it is a good bet one is coming sometime in the near future. I'm not in the crystal ball business, but I think you have to agree we don't want to ignore this topic with the students this year. One very good source for discussions on Court issues is Peter Woll's Reader. I will have my students read several of the articles for class discussion. We will also view the video "Gideon's Trumpet" intentionally watching for Court ideology.

Last week I indicated that this week would be all about the current Court and its personalities, but in my reading and research I got off track and on this subject of judicial ideology. I had intended on covering this anyway so I moved the discussion forward while it was fresh on my mind. I promise next week to discuss the current Court and look briefly at the historic Courts and Justices we should not ignore. Until then...