Foundations
Before we learn about specific rights in the Constitution—such as free speech—we first must examine how the Court decides which rights are protected, and against who. For example: does the Bill of Rights protect you against the federal government? State governments? Disneyland?
The answers to these questions have changed considerably over time, and are the result of specific choices by specific Courts.
The two specific “foundations” we’ll learn about in this unit are state action doctrine and incorporation doctrine.
Simply put, state action refers to the legal doctrine that the Bill of Rights and the 14th Amendment protect us from the government, rather than from the actions of private actors. Incorporation refers to the process by which the Fourteenth Amendment transformed constitutional law so that our fundamental rights protect us from state governments as well as the federal government.
Learning state action doctrine and incorporation doctrine is important not only for having an accurate picture of how civil liberties law operates but also for gaining a fuller understanding of American political and legal development. As the cases below make clear, debates over state action and incorporation were strongly related to the scope and development of civil rights. Race and its role in American history are therefore central to the development of civil liberties in the United States.
The constitutional doctrine that certain provisions of the Bill of Rights or the Fourteenth Amendment only apply to action by governments.
The constitutional process by which the Bill of Rights was applied against state government actions, as opposed to only against federal government actions.
