AP United States Government and Politics

## Learning Outcomes

- Explain what **selective incorporation** means and why it matters
- Identify the role of the **Fourteenth Amendment Due Process Clause**
- Distinguish between the Bill of Rights' original federal-only application and its later application to the states
- Recall major cases including **Barron v. Baltimore (1833)**, **Gitlow v. New York (1925)**, **Mapp v. Ohio (1961)**, and **Gideon v. Wainwright (1963)**
- Explain how selective incorporation limits state legislatures, state courts, police, and local governments
- Recognise that most, but not all, Bill of Rights protections have been incorporated
- Apply selective incorporation to AP exam short-answer and Supreme Court comparison questions

## AP United States Government and Politics Syllabus

For the AP United States Government and Politics, you are expected to understand selective incorporation and how it limits state power, with a focus on the following syllabus points:

- Know that the Bill of Rights originally restricted only the **federal government**
- Identify **Barron v. Baltimore (1833)** as the case that established the federal-only rule
- Understand that the **Fourteenth Amendment Due Process Clause**, ratified in **1868**, became the basis for applying many rights to the states
- Explain that selective incorporation is a **case-by-case** process rather than total incorporation all at once
- Identify **Gitlow v. New York (1925)** as a key early incorporation case for free speech and press
- Explain how **Mapp v. Ohio (1961)** applied Fourth Amendment protections and the exclusionary rule to the states
- Explain how **Gideon v. Wainwright (1963)** applied the Sixth Amendment right to counsel to the states
- Understand that selective incorporation limits **state and local governments**, including police, courts, and legislatures, and that some rights remain unincorporated

## Test Your Knowledge

_Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, look more closely at that area during your revision._

1. What is selective incorporation?
2. Why is **Barron v. Baltimore** important to this topic?
3. How does the **Fourteenth Amendment Due Process Clause** limit states?
4. Name one case that applied free speech to the states and one case that applied the right to counsel.
5. Which parts of the Bill of Rights are still not fully incorporated?

## Introduction

Selective incorporation is one of the most tested ideas in AP Government because it connects civil liberties, federalism, and the Supreme Court. It explains why state governments cannot simply make their own rules about speech, criminal trials, religion, or searches if those rules violate rights the Court has applied to the states.

This topic is easy to define in one sentence, but harder to use well in an exam. Students often say only that the Fourteenth Amendment "applies the Bill of Rights to the states." That is too vague. A strong answer explains the historical change, the constitutional clause involved, the case-by-case method, and the practical result: **state power is limited**.

> **Key Term: selective incorporation**
> The process by which the Supreme Court has applied most protections in the Bill of Rights to state and local governments through the Fourteenth Amendment’s Due Process Clause.

### The starting point: the Bill of Rights did not originally bind the states

To understand why selective incorporation matters, begin with the original rule. When the Bill of Rights was ratified in **1791**, it was mainly understood as a set of restrictions on the **national government**. That meant Congress could not violate listed freedoms, but states often remained free to regulate many of those same areas themselves.

The clearest statement of this rule came in **Barron v. Baltimore (1833)**. John Barron argued that city actions had effectively taken his property without just compensation, which he claimed violated the Fifth Amendment. The Supreme Court rejected his claim because the Bill of Rights did not apply to state governments.

This matters for AP Government because it shows the before-and-after story. Before incorporation, a person could have one level of protection against the federal government and a different, often weaker, level of protection against a state government.

> **Key Term: Barron v. Baltimore (1833)**
> A Supreme Court case holding that the Bill of Rights limited only the federal government, not the states.

Barron also shows that selective incorporation is a **civil liberties** doctrine, not a civil rights doctrine. It is about protecting individuals from government action, especially state action, rather than about equal treatment among groups.

A common mistake is to say the Bill of Rights always applied to all governments in the United States. That is incorrect. If that had been true, there would have been no need for later incorporation cases.

> **Test Tip:** If an FRQ asks you to explain selective incorporation, start with the historical shift: first mention that the Bill of Rights originally applied only to the federal government, then explain how the Court later applied rights to the states through the Fourteenth Amendment.

### The constitutional bridge: the Fourteenth Amendment and due process

The **Fourteenth Amendment**, ratified in **1868**, changed the constitutional relationship between citizens and state governments. The key language for AP Government is the **Due Process Clause**: no state shall deprive any person of life, liberty, or property without due process of law.

That clause did not instantly make the whole Bill of Rights binding on the states. Instead, it gave the Supreme Court a constitutional basis for doing so over time. This is why the doctrine is called **selective** incorporation rather than total incorporation.

> **Key Term: Due Process Clause**
> The part of the Fourteenth Amendment that says states may not deprive any person of life, liberty, or property without due process of law.

The Court's logic developed around the idea that some liberties are so basic that states must respect them. AP-level explanations often use the phrase **ordered liberty**. The question the Court asked was not "Is this right written somewhere?" but more nearly "Is this right fundamental enough that states must obey it too?"

This case-by-case method preserved judicial flexibility. It also preserved some state autonomy, because the Court did not nationalize every right all at once. That matters for federalism. Selective incorporation expanded national protection of liberty while still leaving some room for variation among states.

Why does this limit states in practice? Because once a right is incorporated, state legislatures cannot pass laws violating it, state courts cannot uphold violations of it, state police cannot ignore it, and local governments must also comply. Incorporation therefore nationalises minimum liberty standards.

Students sometimes write that the Fourteenth Amendment "created" freedom of speech, jury trial, or counsel rights. That is not accurate. Those rights already existed in the Bill of Rights. The Fourteenth Amendment became the mechanism for applying many of them against the states.

### How the Court applied rights one by one

The modern era of incorporation is usually traced to **Gitlow v. New York (1925)**. Benjamin Gitlow was convicted under a state law for distributing material advocating revolutionary ideas. The Court upheld his conviction, but the more important point for AP Government is that the Court said freedom of speech and press are among the liberties protected from state infringement by the Fourteenth Amendment.

That is a classic AP pattern: the person in the case may lose, but the case can still be important because it establishes a broader constitutional principle.

> **Key Term: Gitlow v. New York (1925)**
> A Supreme Court case that is important for applying First Amendment free speech and press protections to the states through the Fourteenth Amendment.

After Gitlow, incorporation expanded through a series of decisions:

- **Near v. Minnesota (1931)** helped apply freedom of the press against the states
- **De Jonge v. Oregon (1937)** applied freedom of assembly
- **Cantwell v. Connecticut (1940)** applied free exercise of religion
- **Mapp v. Ohio (1961)** applied the exclusionary rule to the states
- **Gideon v. Wainwright (1963)** applied the right to counsel
- **McDonald v. Chicago (2010)** applied the Second Amendment to the states

The importance of this list is not just memorisation. It shows the Court moving from broad First Amendment freedoms into criminal procedure and later into other areas of liberty. That is why selective incorporation changed everyday government action so much.

Take **Mapp v. Ohio**. Before Mapp, state police could in some situations use illegally obtained evidence in state prosecutions. After Mapp, states had to follow the exclusionary rule, meaning evidence gathered in violation of the Fourth Amendment generally could not be used in court.

> **Key Term: exclusionary rule**
> The rule that evidence obtained in violation of the Constitution cannot generally be used in a criminal trial.

That is a concrete example of how incorporation limits states. It did not merely declare an abstract principle. It changed police procedures, search practices, and courtroom evidence rules across the country.

Now take **Gideon v. Wainwright (1963)**. Gideon had been denied a lawyer in a state felony case because he could not afford one. The Supreme Court ruled that the Sixth Amendment right to counsel is fundamental and therefore applies to the states.

> **Key Term: Gideon v. Wainwright (1963)**
> A Supreme Court case holding that states must provide an attorney to indigent defendants in felony criminal cases.

Again, this directly limited state action. States could no longer say, "This is just our state court system, so we can deny counsel." They had to create and fund systems to provide defense lawyers. That is selective incorporation working through the Due Process Clause to control what states may do.

> **Test Tip:** In a Supreme Court comparison FRQ, do not stop at naming a case. State the right involved and then explain how the case restricted state action. For example: “Gideon v. Wainwright incorporated the Sixth Amendment right to counsel, so states had to provide lawyers in felony cases.”

### Why selective incorporation limits states, and why the limits are not absolute

The phrase "selective incorporation limits states" means more than "states must follow the Constitution." It means states lose freedom to define certain liberties more narrowly than the federal baseline.

Once a right is incorporated, the following state actors are constrained:

- **State legislatures** cannot pass laws violating that right
- **State courts** cannot uphold prosecutions or procedures violating that right
- **State police** must follow constitutional procedures
- **Local governments** such as cities, counties, and school boards are also bound

This has large consequences for federalism. Under the older system, states had wider discretion. Under the incorporated system, states remain important governments, but they are checked by nationally enforced civil liberty standards.

This helps explain why incorporation is so important in AP Government. It is a constitutional story about the balance between liberty and state authority.

However, these rights are not absolute. Even when incorporated, the Court still allows some restrictions. Free speech can be limited in narrow settings. Gun rights can be regulated. Searches can occur with warrants and under certain exceptions. Incorporation does not eliminate all state power. It sets boundaries around it.

Students often confuse this point. Selective incorporation does **not** mean states must treat every incorporated right identically in every situation. It means they cannot go below the constitutional minimum defined by the Court.

Another vital distinction: **most**, not all, rights have been incorporated. AP Government students should know the main exceptions that remain outside full incorporation:

- the **Third Amendment** has no clear full incorporation holding
- the **Fifth Amendment right to grand jury indictment** has not been incorporated
- the **Seventh Amendment right to jury trial in civil cases** has not been incorporated

This matters because strong AP answers avoid overclaiming. If you write, "All of the Bill of Rights applies to the states," you risk losing accuracy.

A final point of development is that incorporation continued beyond the Warren Court years. For example, **McDonald v. Chicago (2010)** held that the Second Amendment right to keep and bear arms for self-defense in the home applies to state and local governments. That case is explicitly part of the AP required curriculum and is one of the clearest modern illustrations of selective incorporation limiting states.

## Key Point Checklist

_This article has covered the following key knowledge points:_

- The Bill of Rights originally restricted only the federal government
- **Barron v. Baltimore (1833)** established that original federal-only rule
- The **Fourteenth Amendment**, ratified in **1868**, provided the constitutional basis for applying many rights to the states
- The specific clause used for AP Government is the **Due Process Clause**
- Selective incorporation is a **case-by-case** process, not total incorporation all at once
- **Gitlow v. New York (1925)** is a key early case applying free speech and press to the states
- **Mapp v. Ohio (1961)** applied Fourth Amendment protections and the exclusionary rule to the states
- **Gideon v. Wainwright (1963)** applied the Sixth Amendment right to counsel to the states
- Selective incorporation limits state legislatures, state courts, police, and local governments
- Incorporated rights are not absolute; states may regulate them within constitutional limits
- Most, but not all, Bill of Rights protections have been incorporated
- The Fifth Amendment grand jury requirement and Seventh Amendment civil jury trial right remain important unincorporated examples

## Key Terms and Concepts

- selective incorporation
- Barron v. Baltimore (1833)
- Due Process Clause
- Gitlow v. New York (1925)
- exclusionary rule
- Gideon v. Wainwright (1963)


Selective Incorporation - Selective incorporation limits states