The Bill of Rights and Incorporation

Explores incorporation of the Bill of Rights against the states as provided for in the Fourteenth Amendment. Highlights the controversies about incorporation as well as significant incorporation cases.

What is Incorporation?

Clock 50 minutes

The Fourteenth Amendment was originally written to ensure that freed slaves would be treated as citizens, but, in the twentieth century, the Supreme Court used the amendment’s Equal Protection and Due Process Clauses to expand the protections provided in the Bill of Rights to the states. This concept of extending, called incorporation, means that the federal government uses the Fourteenth Amendment and the Bill of Rights to address limitations on liberty by states against their citizens. This lesson explores the significance of this amendment and incorporation and its effects on our constitutional structure.

Founding Principles

Federalism image

Federalism

The people delegate certain powers to the national government, while the states retain other powers; and the people, who authorize the states and national government, retain all freedoms not delegated to the governing bodies.

Inalienable / Natural Rights image

Inalienable / Natural Rights

Freedoms which belong to us by nature and can only be justly taken away through due process.

Overview

What is the significance of the Fourteenth Amendment? It was written to ensure that freed slaves would be treated as citizens. In the twentieth century, however, the courts have extended its protections to various classes of people in various circumstances. This concept of incorporation means that the federal government uses the Fourteenth Amendment to address limitations on liberty by states against their citizens. But does incorporation give the federal government too much power?

Objectives

Students will:

  • Explain the constitutional significance of the Fourteenth Amendment
  • Contrast the Founders’ divergent views about which level of government might best protect individual liberty
  • Analyze the constitutional implications of incorporation
  • Evaluate how the Fourteenth Amendment has been used to protect individual rights

Materials

  • Handout A: Background Essay – What Is Incorporation?
  • Handout B: The Nation, the States, and Liberty
  • Handout C: Consequences of Incorporation (5 copies needed)

Standards

  • NCHS (5-12): Era III, Standards 3B, 3C; Era V, Standards 3B, 3C; Era IX, Standards 4A, 4C; Era X, Standard 2E
  • CCE (9-12): IIA1
  • NCSS: Strands 1, 2, 5, 6, and 10

Background 10 minutes the day before

  1. Have students read Handout A: Background Essay – What Is Incorporation? Encourage students to think about the Critical Thinking questions at the end of the essay.

Warm-up 15-20 min.

  1. Briefly review with the students the key points and/or the Critical Thinking questions from Handout A.
  2. Distribute (or project on a whiteboard) Handout B: The Nation, the States, and Liberty.
    1. Give students 4-5 minutes to answer the questions. Spend a few minutes discussing their responses.

Activities 20-30 min.

  1. Ask for five volunteers to present to the class from Handout C: Consequences of Incorporation. Encourage them to read their parts expressively and energetically.
  2. Once students have finished the presentation, discuss the following questions with the entire class:
    1. Who was affected by the teachers’ decisions?
    2. Who was affected by the principal’s decision?
    3. Who was affected by the superintendent’s decision?
    4. Why did the superintendent incorporate her decision? Who would have liked or disliked her first decision? Liked or disliked her second decision?
    5. In the real world of schools, at which level (class, school, or district) is it easiest to get changes made? Most difficult to get changes made?
    6. What are the advantages or disadvantages of incorporation?
    7. Some say that incorporation has resulted in an expansion of our liberties. Others say that incorporation has resulted in an expansion of the federal government. What do you say? Could both positions be correct?

Homework

  1. Have students find an on-line article about a fundamental freedom protected by the Bill of Rights. Students should:
    1. Identify the fundamental right
    2. Identify the amendment protecting that fundamental right
    3. Describe what action is being taken by either the federal or state government concerning the fundamental right
    4. Explain whether or not the action violates a fundamental right
    5. Determine the best way to resolve any conflict between the individual’s freedom and the government’s position
  2. Have students choose or assign students to two groups: In favor of or against incorporation. Have students write a 5-7 sentence summary of why they are for or against incorporation. Students should use the Constitution and/or historical examples to support their arguments. Optional extension: have students debate the pros and cons of incorporation with each other.

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