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...