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.

Who Should Protect Our Fundamental Freedoms?

Clock 50 minutes

The effects of incorporation have been far-reaching and the role of the federal government has been significantly transformed. The basic responsibility of the Federal government to protect fundamental rights has not changed. However, citizens and the courts are still working to determine exactly what those rights are and who should protect them. This lesson examines that question and the debate concerning “Who should protect our fundamental freedoms?”.

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.

Limited Government image

Limited Government

Citizens are best able to pursue happiness when government is confined to those powers which protect their life, liberty, and property.

Separation of Powers image

Separation of Powers

A system of distinct powers built into the Constitution to prevent an accumulation of power in one branch.

Overview

Incorporation’s effects have been far-reaching—perhaps even more than the writers of the Fourteenth Amendment could have imagined. The role of the federal government has been significantly transformed, as has the role of the Supreme Court. The basic responsibility of government to protect fundamental rights has not changed. However, citizens and the courts are still working to determine exactly what those rights are and who should best protect them.

Objectives

Students will:

  • Describe fundamental freedoms
  • List the multiple protections provided by the Bill of Rights
  • Review Supreme Court incorporation cases
  • Assess the constitutional implications of incorporation
  • Appreciate the challenges in defining fundamental freedoms

Materials

  • Handout A: Background Essay – Who Should Define Our Fundamental Freedoms?
  • Handout B: Attitude Inventory
  • Handout C: Fundamental Freedoms?
  • Handout D: Incorporation Cases Chart

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 – Who Should Define Our Fundamental Freedoms? Encourage students to think about the Critical Thinking questions at the end of the essay.
  2. Have them also complete Handout B: Attitude Inventory. They should take the survey twice: once before reading the essay and again after reading the essay.

Warm-up 10-15 min.

  1. Briefly review with the students the key points and/or the Critical Thinking questions from Handout A.
  2. Review responses to Handout B: Attitude Inventory. Ask students the following:
    1. Did your responses change after reading the essay? If so, how and why?
    2. Would you be bothered if your state allowed 18 year-olds to purchase alcohol but a neighboring state did not? What if the situation were reversed?
    3. What if your state did not permit trial by jury but a neighboring state did?
    4. Is the right to purchase alcohol a fundamental freedom? Is the right to trial by jury a fundamental freedom?
    5. What is a fundamental freedom?
    6. How does your state government protect your rights? How does the federal government protect your rights?

Activities 20-30 min.

  1. Distribute Student Handout C: Fundamental Freedoms? along with a copy of the Bill of Rights. Give students about ten minutes (working in pairs) to complete their list.
  2. Ask students to circle those rights which they think are fundamental freedoms. They can circle as few or as many, but should be prepared to discuss their selection.
  3. Distribute Handout D: Incorporation Cases Chart and give students time to indicate in the Incorporation column on Handout C which freedoms have been incorporated against the states.
    1. Discuss the following questions with the entire class:
      1. Which rights listed in the Bill of Rights have not been incorporated? Why?
      2. Would your conscience be “shocked” if some rights listed in the Bill of Rights were denied you by your state government? Which rights are those?
      3. Are those rights fundamental freedoms?
      4. Which list of fundamental freedoms is longer, yours or the Supreme Court’s (as indicated by the rights that have been incorporated)? How do you account for the differences? Is your list too long? Is the Court’s too short?
      5. Looking at Handout D, do you observe any patterns in the cases; e.g. types of issues decided? when they were decided? amendments which were referenced?

Homework

  1. Have students choose one of the rights that is not incorporated and write a “Letter to the Editor” either opposing or supporting incorporation.
    1. Their letter should include an explanation of why the right is/is not a fundamental freedom, and why it would be better for the citizens of their state if the right were/were not incorporated.

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