AP US Government study guide · Chapter 23
Why the Bill of Rights reaches the states
UNIT 3 · RIGHTS
CHAPTER 20
When the Bill of Rights was ratified, its protections did not operate against state governments the way they do today. The change came through the Fourteenth Amendment and a long series of Supreme Court decisions applying particular rights to state and local action. That history is why a school-prayer case, a right-to-counsel case, and a gun-rights case can all involve the same structural idea even though the underlying liberties are different.
Begin with two distinctions. Civil liberties protect individual freedoms, while civil rights protect equality and nondiscrimination. Selective incorporation explains how most Bill of Rights protections became enforceable against the states.
CIVIL LIBERTIES ARE LIMITS ON GOVERNMENT
A civil liberty is a protection against government action: a limit on what government may do to an individual, such as restricting speech, conducting an unreasonable search, or denying a fair trial. The Bill of Rights, the first ten amendments, states these limits directly, restraining government rather than granting government any new power.
CIVIL RIGHTS ARE CLAIMS TO EQUAL TREATMENT
Civil rights are legal protections against unequal treatment or discrimination. Constitutional civil-rights claims often concern government action under the Equal Protection Clause, while federal statutes can also prohibit discrimination by covered private actors. Civil liberties mainly protect individuals against government interference with protected freedoms; civil rights focus on equality and nondiscrimination under constitutional and statutory law.
THE BILL OF RIGHTS ORIGINALLY BOUND THE FEDERAL GOVERNMENT
The Bill of Rights was originally understood to constrain the federal government, not the states. Although the Tenth Amendment expressly refers to the states, the individual-rights guarantees in the first eight amendments were not originally enforceable against state governments. Barron v. Baltimore (1833) confirmed that the Bill of Rights did not, by itself, bind the states, and for much of the nation’s early history, state governments could restrict speech, religion, or due process in ways the federal government could not.
THE FOURTEENTH AMENDMENT CHANGED THE STATE QUESTION
Ratified after the Civil War, the Fourteenth Amendment bars states from depriving any person of life, liberty, or property without due process of law. That Due Process Clause became the textual hook courts used, case by case, to extend specific Bill of Rights protections to state and local governments, a process that took decades and still continues today for the rare right not yet incorporated.
SELECTIVE INCORPORATION AS A MECHANISM
Selective incorporation applies individual Bill of Rights protections to state and local governments through the Fourteenth Amendment’s Due Process Clause. Gideon v. Wainwright and McDonald v. Chicago are especially useful required-case anchors because each directly explains why a specific Bill of Rights protection binds the states: Gideon applies the Sixth Amendment right to appointed counsel in state felony prosecutions, and McDonald applies the Second Amendment right to keep and bear arms for self-defense to state and local governments.
Engel v. Vitale and Tinker v. Des Moines involve state or local public-school actors, so the First Amendment constrains those governments. They are important examples of the consequences of incorporation, but they should not be presented as the decisions that themselves historically incorporated the Establishment Clause or Free Speech Clause.
| Case | Protection used in the case | How to classify it in this book |
|---|---|---|
| Gideon v. Wainwright | Sixth Amendment right to counsel | Direct required-case incorporation anchor through the Fourteenth Amendment |
| McDonald v. Chicago | Second Amendment right to keep and bear arms for self-defense | Direct required-case incorporation anchor through the Fourteenth Amendment |
| Engel v. Vitale | First Amendment Establishment Clause | Applies an incorporated First Amendment protection against a state/local public-school actor; not the historical incorporation decision |
| Tinker v. Des Moines | First Amendment Free Speech Clause | Applies incorporated speech protection against public-school officials; not the historical incorporation decision |
Table 20.1 Incorporation anchors versus later applications of an incorporated right.
SORTING LIBERTIES FROM RIGHTS
Three claims appear below. Sort each one as a civil liberty or a civil right before checking the answer.
Claim 1. A city ordinance requires a permit before any public demonstration, and a group argues the requirement restricts their speech.
Civil liberty. The claim concerns a limit on government’s ability to restrict protected expression.
Claim 2. A school district assigns students to different schools based on race, and a family argues the assignment denies their child equal treatment.
Civil right. The claim concerns whether government is treating people equally under the law.
Claim 3. Police search a home without a warrant, and the resident argues the search itself was unconstitutional.
Civil liberty. The claim concerns a direct limit on government action against an individual, not a claim about unequal treatment.
QUESTIONS TO ANSWER WITHOUT NOTES
1. What is the difference between a civil liberty and a civil right?
A civil liberty protects an individual freedom against government interference. A civil right protects equality or nondiscrimination under constitutional or statutory law, and some civil-rights statutes also regulate covered private actors.
2. Did the Bill of Rights originally restrain state governments?
No. It was written to restrain the federal government; state governments were not bound by it at the time.
3. What constitutional provision is the mechanism for incorporation?
The Fourteenth Amendment’s Due Process Clause, not the Supremacy Clause.
4. What does selective incorporation mean?
The Supreme Court applies individual Bill of Rights protections to the states one right at a time, rather than all at once.
5. Which amendment and right did Gideon v. Wainwright incorporate?
The Sixth Amendment right to appointed counsel for indigent defendants.
6. Which amendment and right did McDonald v. Chicago incorporate?
The Second Amendment right to keep and bear arms for self-defense.
7. How do Engel and Tinker differ from Gideon and McDonald in an incorporation discussion?
Gideon and McDonald are direct required-case incorporation anchors. Engel and Tinker apply First Amendment protections to state or local public-school actors after those protections were already applicable to the states.