Civil Liberties & Civil Rights · Weeks 10-18

The 14th Amendment & Selective Incorporation

How the Bill of Rights was applied to the states through the Due Process and Equal Protection clauses.

About This Topic

The Bill of Rights was originally understood to limit only the federal government, not the states. For nearly 80 years after ratification, state governments could restrict freedoms that Congress could not touch. The 14th Amendment, ratified in 1868, changed that framework through the Due Process Clause, which prohibits states from depriving any person of life, liberty, or property without due process of law. Through a doctrine called selective incorporation, the Supreme Court has used this clause to apply most of the Bill of Rights protections to state action, case by case, over the course of the 20th century.

Students examining this doctrine need to understand both the historical context, including the failures of Reconstruction-era enforcement, and the legal mechanism by which incorporation works. Key cases like Gitlow v. New York (1925), Mapp v. Ohio (1961), and Gideon v. Wainwright (1963) illustrate how the Court incorporated specific rights and why. Not all rights have been incorporated; the Third Amendment right against quartering soldiers, for example, has never been tested.

Active learning works especially well here because the history of incorporation involves real people whose rights were violated by state governments. Case studies and simulations ground the abstract doctrine in concrete, human stakes.

Learning Objectives

• Analyze the historical context and legal reasoning behind the Supreme Court's decision to apply the Bill of Rights to state governments through selective incorporation.
• Compare and contrast the application of specific Bill of Rights protections to the states, identifying key Supreme Court cases that established precedent.
• Evaluate the effectiveness of the Equal Protection Clause in addressing historical and contemporary civil rights issues.
• Explain the process by which the Due Process Clause of the 14th Amendment facilitated the selective incorporation of fundamental rights.
• Identify rights explicitly mentioned in the Bill of Rights that remain unincorporated and discuss potential reasons for their status.

Before You Start

The U.S. Constitution and the Bill of Rights

Why: Students must have a foundational understanding of the original Bill of Rights and its initial limitations to grasp why the 14th Amendment and incorporation were necessary.

Structure and Powers of the Federal Government

Why: Understanding the distinct powers of the federal government is essential to appreciating the shift in how rights were applied to state governments.

Foundations of American Civil Liberties

Why: Prior exposure to concepts of individual freedoms and protections is necessary to understand how these were extended to state action.

Key Vocabulary

Selective Incorporation	The legal process by which the Supreme Court has applied most of the protections of the Bill of Rights to state governments, on a case-by-case basis, through the 14th Amendment's Due Process Clause.
Due Process Clause	A clause in the 14th Amendment that prohibits states from depriving any person of life, liberty, or property without due process of law, serving as the primary mechanism for incorporation.
Equal Protection Clause	A clause in the 14th Amendment that prohibits states from denying any person within their jurisdiction the equal protection of the laws, a cornerstone for civil rights litigation.
Bill of Rights	The first ten amendments to the U.S. Constitution, originally intended to restrict only the federal government, not state governments.
Unincorporated Rights	Protections found in the Bill of Rights that the Supreme Court has not yet applied to state governments through the process of selective incorporation.

Active Learning Ideas

Jigsaw: Key Incorporation Decisions

Groups each study one incorporation case (Gitlow, Mapp, Gideon, McDonald) and prepare to teach the class. Each group explains: what right was at stake, what the state government did, how the Supreme Court ruled, and what the ruling changed. The jigsaw format ensures every student understands multiple cases through peer teaching.

⏱ 35 min·Small Groups

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Bill of Rights Incorporation Audit

Students receive a list of all Bill of Rights provisions and research which have been incorporated, which have not, and which are contested. Working in pairs, they build an incorporation chart and then discuss as a class why certain rights, like the grand jury indictment requirement, remain unincorporated.

⏱ 25 min·Pairs

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Equal Protection Clause Analysis: From Reconstruction to Today

Students trace the Equal Protection Clause from its post-Civil War origins through its use in civil rights cases, using primary source excerpts from key decisions. They identify which cases relied primarily on equal protection versus due process and discuss why litigants choose one argument over the other.

⏱ 20 min·Small Groups

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Think-Pair-Share: Why Did It Take 100 Years?

Students individually write a brief explanation for why the Bill of Rights was not applied to states until nearly a century after the 14th Amendment's ratification. They share with a partner, then the class constructs a collective explanation covering political, legal, and institutional factors.

⏱ 15 min·Pairs

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Real-World Connections

Civil rights attorneys use the Equal Protection Clause to challenge discriminatory laws and practices in state courts, arguing for equal treatment under state law for all citizens, similar to how Thurgood Marshall argued in Brown v. Board of Education.

Journalists investigating potential abuses of power by local police departments or school boards must understand the incorporated rights, such as freedom of speech or protection against unreasonable searches, to report on violations of citizens' liberties.

Public defenders represent individuals accused of crimes in state courts, relying on the Due Process Clause and incorporated rights like the right to counsel (Gideon v. Wainwright) to ensure a fair trial.

Watch Out for These Misconceptions

Common Misconception

The Bill of Rights has always protected citizens from state governments.

What to Teach Instead

The Bill of Rights originally applied only to the federal government, as the Supreme Court made explicit in Barron v. Baltimore (1833). Selective incorporation through the 14th Amendment is largely a 20th-century development. This historical gap explains why states could enforce many restrictions that Congress could not.

Common Misconception

The 14th Amendment immediately incorporated all of the Bill of Rights.

What to Teach Instead

Incorporation happened selectively and gradually, case by case, over more than 100 years. The Court has never held that the 14th Amendment incorporates the Bill of Rights wholesale. Each right had to be established as fundamental to ordered liberty before it was applied to the states.

Common Misconception

Equal protection and due process are interchangeable constitutional concepts.

What to Teach Instead

Equal protection asks whether a law treats similarly situated people differently without sufficient justification. Due process asks whether a law deprives someone of life, liberty, or property without fair procedures or violates a fundamental liberty interest. Courts use both clauses, but they analyze different questions.

Assessment Ideas

Exit Ticket

Provide students with a brief scenario describing a state government action that potentially infringes on a right listed in the Bill of Rights. Ask them to identify which right is at issue, whether it has been incorporated, and cite the relevant clause of the 14th Amendment that allows for its application to the states.

Discussion Prompt

Pose the question: 'Given that the Bill of Rights was initially intended only for the federal government, what does the doctrine of selective incorporation reveal about the evolving role of the Supreme Court and the interpretation of constitutional rights over time?' Facilitate a class discussion on the implications for federalism and individual liberties.

Quick Check

Present students with a list of amendments from the Bill of Rights (e.g., 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th). Ask them to quickly research and label each one as 'Incorporated' or 'Unincorporated' and provide one example case for at least three incorporated rights.

Frequently Asked Questions

What is selective incorporation and how does it work?

Selective incorporation is the process by which the Supreme Court has applied specific provisions of the Bill of Rights to state governments through the Due Process Clause of the 14th Amendment. Rather than incorporating all rights at once, the Court has done so case by case, asking whether each right is fundamental to the concept of ordered liberty.

Why did it take so long for the Bill of Rights to apply to states?

The Supreme Court ruled in 1833 that the Bill of Rights limited only the federal government. After the 14th Amendment passed in 1868, the Court was slow to use it to incorporate rights, partly due to narrow interpretations and political resistance during and after Reconstruction. Consistent incorporation did not begin in earnest until the mid-20th century.

Are there any Bill of Rights provisions still not applied to the states?

Yes. The Third Amendment (quartering soldiers), the Fifth Amendment's grand jury indictment requirement, the Seventh Amendment's civil jury trial right, and the Eighth Amendment's excessive fines clause (only recently incorporated in Timbs v. Indiana, 2019) have either never been incorporated or were incorporated very recently.

How does active learning help students understand selective incorporation?

Incorporation is a layered legal doctrine that becomes much clearer when students work through specific cases and build the doctrine themselves. Jigsaw activities and incorporation audit charts ask students to identify the pattern across multiple cases rather than accept a textbook summary, which builds the kind of structural understanding that sticks.