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Hello, everybody, and welcome to
this video for the second week

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of this first semester.

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Today will be the last of our
videos focusing on the 14th Amendment

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to the US Constitution, adopted
in 1868 to protect the rights of

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black Americans

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three years after the abolition
of slavery in 1865.

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All we really have to do today
is study one concept,

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one notion: incorporation.

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Obviously, this concept of
incorporation is linked to the

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14th Amendment, which is why we
are studying it today.

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And if you want to understand
incorporation, you have to answer

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a question about the Bill of Rights
itself.

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The question is: Who has to respect
the rights guaranteed in the Bill

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of Rights?

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In other words, we know that the
Bill of Rights is supposed to protect

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the fundamental democratic rights
of American citizens,

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but protect them from whom?

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Who is the enemy?

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Who is the threat?

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The answer is the government.

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Remember: The objective of the Founding
Fathers when they wrote the

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Constitution in general and the
Bill of Rights in particular,

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was to make sure that the US would
always remain a democracy.

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In other words, they wanted to
avoid a dictatorship, which means

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they didn't want the government
to become too powerful and threaten

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the rights of American citizens.

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So that's your answer.

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The Bill of Rights protects the
rights of American citizens from

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the government.

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But here's the problem.

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As you saw in L2,
the US has a federal system,

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which means that it has two levels
of government: the federal government

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for the entire country, and the
individual governments of the states.

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Which means the question actually
becomes, was the Bill of Rights

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supposed to protect the rights
of American citizens from the federal

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government or from the states'
governments?

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Luckily for us, that question is
answered by the very first word

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of the Bill of Rights,
because as we will see next week,

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the very first word of the First
Amendment is "Congress".

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Quote, "Congress shall make no law
respecting an establishment of

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religion" end of quote.

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And Congress, of course,
is part of the federal government.

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That's your answer.

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The Bill of Rights considers the
federal government as the enemy,

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or at least the threat to liberty,

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and it forces that federal government
to respect the rights of American

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citizens.

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But it imposes no obligation on
the states, which makes sense because

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the Founding Fathers who drafted
the Constitution and the Bill of

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Rights actually represented the states.

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When the Bill of Rights was adopted,
the states were seen as the protectors

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of the rights of their citizens,
and the federal government was

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the threat to those rights.

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But the Civil War actually reversed
those roles.

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Between 1861 and 1865,

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it was the states, particularly
in the South, who wanted to maintain

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slavery, and it was the federal
government led by Abraham Lincoln

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who was trying to abolish it.

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Then, once the Civil War was over
and slavery was abolished,

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it was the states who tried to
prevent black Americans from becoming

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American citizens and from voting.

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And it was the federal government
that was trying to protect these

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rights.

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Now, the federal government was
the protector of the rights of

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American citizens, and the states
were the threat.

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Which is why, unlike the First
Amendment, which starts with the

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word Congress, the 14th Amendment
targets the states.

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Go back to the text of the 14th
Amendment, quote," No state shall

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make or enforce any law which shall
abridge the privileges or immunities

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of citizens of the United States.

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Nor shall any state deprive any
person of life, liberty or property

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without due process of law",
end of quote.

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Now, with the 14th Amendment,
the states had to respect the

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fundamental rights of American
citizens, which led some people

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at the time to ask themselves the
following question: Should the states

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also be forced to respect the Bill
of Rights? For decades,

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Americans had thought that the
federal government was the threat

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to freedom of speech,
to freedom of religion,

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to the right to own a gun.

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ET cetera.

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But now the 14th Amendment had
recognized that the states could

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be just as much of a threat.

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So should we force the states to
respect those rights as well?

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That is the concept of incorporation.

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Incorporation is a constitutional
doctrine that uses the 14th Amendment

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as a justification for applying
the Bill of Rights to the states.

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Because incorporation is a
constitutional question,

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it would eventually have to be
answered by the ultimate interpreter

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of the Constitution:

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the Supreme Court.

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The first time the Supreme Court
used incorporation to force the

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states to respect a right protected
by the Bill of Rights was in 1925,

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in the Gitlow v. New York decision.

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Using the 14th Amendment,
the court forced the state of New

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York and all other states,
of course, to respect freedom of

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speech, the same way the federal
government had to respect freedom

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of speech.

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Now, that incorporation had officially
been recognized by the Supreme Court,

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at least for one right, freedom
of speech,

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the next thing the court would
have to do was to choose between

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two possible types of incorporation,
selective incorporation and total

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incorporation.

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The difference between the two
is pretty easy to understand.

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Selective incorporation is the
idea that the states would only

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be forced to respect some of the
rights protected by the Bill of Rights,

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whereas total incorporation would
force the states to respect the

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entire Bill of Rights,
just like the federal government.

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The Supreme Court made that decision
in 1937, in the Palko v.

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Connecticut decision,
and the court chose selective

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incorporation, which means the
states would only have to respect

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some of the rights protected by
the Bill of Rights.

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Which leads us to the next question.

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Now that we know the states would
only have to respect some of the

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rights protected by the Bill of Rights
(that's selective incorporation),

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how were these rights going to
be chosen?

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How would the Supreme Court determine
if a specific right had to be respected

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by the states or not?

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That question was also answered
in Palko v. Connecticut,

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and the Supreme Court said that
the states would only have to respect

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the rights that are,
quote, "so rooted in the traditions

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and conscience of our people as
to be ranked as fundamental",

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end of quote.

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In other words, only the rights
that Americans tend to directly

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associate to the very idea of democracy
and liberty would be incorporated

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against the states.

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But remember, most amendments in
the Bill of Rights protect several

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rights each.

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For instance, the First Amendment,
which we will start studying next week,

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protects seven different rights.

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The consequence is that whether
or not incorporation should apply

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would be decided, not amendment
by amendment, but right by right,

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which means that within the same
amendment, some rights might be

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incorporated and would have to
be respected by the states while

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others within the same amendment
would not.

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With that in mind, you should know
that there are three categories

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of amendments as it relates to
incorporation.

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On the one hand, you have amendments
that are entirely incorporated.

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In other words, all the rights
that these amendments protect have

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to be respected by the states.

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Then you have amendments that are
partially incorporated,

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so some of the rights they protect
are incorporated and have to be

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respected by the states and some
are not.

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And finally, you have amendments
that are not incorporated.

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Those are the amendments that the
states do not have to respect.

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The list of entirely incorporated
amendments includes the First

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Amendment, the Second,
the Fourth, the Sixth and the Eighth.

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The only amendment that is partially
incorporated is the Fifth Amendment.

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Finally, the Third, the Seventh
and the Tenth

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amendments were never incorporated.

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All right.

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That's it for today.

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And that's it for our study of
the 14th Amendment.

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Next week, we will go back to the
Bill of Rights itself,

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and we will start a series of three
classes dedicated to the First

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Amendment to the American
Constitution.

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Goodbye, and see you next week.