How does selective incorporation extend the protections of the Bill of Rights to the states, and why does it matter?
Topic 3.7 Selective Incorporation: explain how the Supreme Court has applied most of the protections of the Bill of Rights to the states through the doctrine of selective incorporation.
A focused answer to AP US Government Topic 3.7: how selective incorporation uses the Fourteenth Amendment's due process clause to apply Bill of Rights protections to the states, the required cases McDonald v. Chicago and Gitlow as examples, and how to use the doctrine in SCOTUS Comparison and Argument Essay answers.
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What this topic is asking
Topic 3.7 explains the doctrine that ties Unit 3 together: selective incorporation. The College Board wants you to explain how the Supreme Court used the Fourteenth Amendment's due process clause to apply most Bill of Rights protections to the states, case by case. The required case McDonald v. Chicago is the headline example.
The problem selective incorporation solves
When the Bill of Rights was ratified, it restrained only the federal government. A state could, in principle, restrict speech or religion without violating the federal Constitution. The Fourteenth Amendment (1868) changed this by forbidding any state to "deprive any person of life, liberty, or property, without due process of law".
Why "selective"
The Court did not apply the entire Bill of Rights to the states in a single ruling. Instead it has incorporated rights one at a time as cases arose, judging each right's importance. Most major protections (speech, press, religion, the right to counsel, the Second Amendment) are now incorporated.
Why incorporation matters
Incorporation makes fundamental rights uniform across the country. Your free speech or right to counsel does not depend on which state you live in. This expanded national protection of liberty, though it also reduced the states' freedom to set their own rules, a tension you can use in an Argument Essay on federalism.
Try this
Q1. Explain what selective incorporation does and which clause it uses. [Short explanation]
- Cue. It applies Bill of Rights protections to the states, case by case, through the Fourteenth Amendment's due process clause.
Q2. Identify the required case that incorporated the Second Amendment against the states. [Recall]
- Cue. McDonald v. Chicago (2010).
Exam-style practice questions
Practice questions written in the style of College Board exam questions on this dot point, with worked answer explainers. The year tag is the paper they imitate, not the source.
AP 2020 (style)4 marksMcDonald v. Chicago (2010) is a required Supreme Court case that relied on selective incorporation. A state law restricts a right protected by the Bill of Rights, and a resident argues the Fourteenth Amendment bars the state from doing so. A. Identify the constitutional clause that selective incorporation relies on. B. Explain how the facts of the scenario are similar to McDonald v. Chicago. C. Explain how the reasoning of selective incorporation could be applied to the scenario.Show worked answer →
A SCOTUS Comparison FRQ, 4 points.
A. Identify: the Fourteenth Amendment's due process clause.
B. Explain the similarity: both involve a state or local law restricting a Bill of Rights protection, challenged on the ground that the Fourteenth Amendment applies that protection to the states.
C. Apply the reasoning: selective incorporation applies fundamental Bill of Rights protections to the states case by case through the due process clause, as in McDonald, so the state law restricting a fundamental right would be unconstitutional.
Markers reward naming the due process clause and explaining the case-by-case application.
AP 2022 (style)6 marksDevelop an argument about whether selective incorporation has strengthened or weakened the federal system. Use at least one piece of evidence from one of the following: the Constitution of the United States or Federalist No. 51. Provide a defensible thesis, evidence and reasoning, and a response to an opposing perspective.Show worked answer →
An Argument Essay FRQ, 6-point rubric.
Thesis (1): e.g. "Selective incorporation strengthened liberty by making rights uniform, even as it reduced state discretion."
Evidence (up to 3): the Fourteenth Amendment's due process clause; the Bill of Rights' original federal-only scope; Federalist No. 51 on protecting rights through structure.
Reasoning (1): explain how uniform protection prevents states from denying fundamental rights.
Alternative perspective (1): concede that incorporation centralizes power and limits state experimentation, then argue uniform rights are worth it.
Related dot points
- Topic 3.1 The Bill of Rights: explain how the U.S. Constitution protects individual liberties and rights through the Bill of Rights.
A focused answer to AP US Government Topic 3.1: how the Bill of Rights protects individual liberties, the difference between civil liberties and civil rights, why these protections are interpreted by the courts, and how to use the document and required cases in an Argument Essay.
- Topic 3.5 Second Amendment: explain how the Supreme Court has interpreted the Second Amendment and the scope of the right to keep and bear arms.
A focused answer to AP US Government Topic 3.5: the Second Amendment right to keep and bear arms, the required case McDonald v. Chicago, how this right was incorporated against the states, the debate over gun regulation, and how to use the case in SCOTUS Comparison and Argument Essay answers.
- Topic 3.8 Amendments: Due Process and the Rights of the Accused: explain the implications of the protections for criminal defendants found in the Fourth, Fifth, Sixth, and Eighth Amendments.
A focused answer to AP US Government Topic 3.8: the rights of the accused in the Fourth, Fifth, Sixth, and Eighth Amendments, the required case Gideon v. Wainwright and the right to counsel, the exclusionary rule and Miranda warnings, and how to use them in SCOTUS Comparison and Argument Essay answers.
- Topic 3.9 Amendments: Due Process and the Right to Privacy: explain how the Supreme Court has interpreted the Constitution to find a right to privacy and the controversy surrounding it.
A focused answer to AP US Government Topic 3.9: the right to privacy, how the Court located it in the due process clause despite no explicit text, the required case Roe v. Wade, why the right is contested, and how to use it in SCOTUS Comparison and Argument Essay answers.
- Topic 1.7 Relationship Between the States and Federal Government: explain how societal needs affect the constitutional allocation of power between the national and state governments.
A focused answer to AP US Government Topic 1.7: how federalism divides power through enumerated, reserved, and concurrent powers, the Tenth Amendment, and how categorical and block grants, mandates, and revenue sharing shape national-state relations.
Sources & how we know this
- AP United States Government and Politics Course and Exam Description — College Board (2020)