Selective Incorporation

Compelling Question

What civil liberties do you have and what's to stop the government from taking them away?

History of US Civil Liberties

1)What are your civil liberties?

Do BOTH of the following:

  • List as many civil liberties as you can:

  • Rank those civil liberties from most to least important:

The 1st Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

1 sentence, 45 words, 5 rights. This sentence is so important that we will spend a whole lot of time analyzing and discussing it.

Do BOTH of the following:

  • Turn those 45 words into a 140 character Tweet:

  • Use your phone or device to turn those 5 rights into emojis. For example, Freedom of religion =

2)How did we get the rights we have?

Our rights are guaranteed by the Constitution and the Bill of Rights. But the Constitution only prevents the federal government from infringing on your rights. Does the Constitution stop state & local governments from infringing on your rights?

No. It only protected your rights from being infringed by the federal government. It says nothing about state & local governments infringing on your rights.

So does that mean that the states can deprive you of your First Amendment rights today?

No. Because of a few major historical steps:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

What the heck does this mean?

This due process clause of the 14th Amendment states that the same rules that stop the national government from restricting your rights apply to the states as well.

  • Gitlow versus New York

In Gitlow versus New York (1925) The Court ruled that just as the national government could not violate your rights from the Bill of Rights, neither could the state governments.

After this the Court began to incorporate most of the provisions of the Bill of Rights to all people in all states through due process clause. This is probably the most important constitutional development since the writing of the Constitution.

Look at the following charts on Selective Incorporation

Then in 1961, Mapp v Ohio incorporated the 4th Amendment, and soon other amendments would follow.

Do ALL of the following:

  • Based on what you have learned, write a concise definition of selective incorporation:

  • Make a timeline of the expansion of civil liberties for all Americans with a picture or photograph for at least 8 major points on the timeline.

  • Write a letter to the governor and legislature of your state explaining to them whether they have to power to restrict your freedom of speech.

3)What is the state of our rights today?

Read the most recent State of the First Amendment, paying close attention to the charts and graphs.

Use your knowledge of American civil liberties, your reading of the State of the First Amendment, and the following charts to answer the questions below.

  • On a scale of 1 to 10, with 1 meaning that our rights are absolutely protected, and 10 meaning that we have no rights, assign a number and then describe our current state of the First Amendment:

  • Imagine you are arguing a case before the Supreme Court. Construct a concise and compelling argument explaining exactly what can stop the government from taking away our civil liberties.

  • What would you say to a member of the public who says the First Amendment goes too far in the rights it guarantees?

  • Our civil liberties are guaranteed in the Consti - freaking - tution. Does it really matter what the public thinks about civil liberties?

Compelling Question Review

What civil liberties do you have and what's to stop the government from taking them away?

Hypothetical Extension

Imagine a U.S. where the ruling in Gitlow v New York was reversed, and selective incorporation never happened. Describe a road trip across this nation in a 1 page travel guide.

Action Extension

Use one of the following methods to explaining to your fellow citizens the state of civil liberties in America today.

  • Letter to the editor

  • v-blog

  • Prezi

  • infographic