Chapter 2: The Vertical Incorporation of the Bill of Rights

The Creator In The Classroom

From Everson to Edwards, A Legacy of Lunacy

The purpose of the Bill of Rights was not to limit the power of state governments over their individual citizens, but simply to limit the power of the Federal government over the affairs of individual citizens.  According to the Tenth Amendment, any power not delegated to the Federal government remained exclusively within the province of the individual states.  As noted above, the states did indeed have the right to make laws regarding establishments of religion.  Taxes in fact were collected to support state religion.  Eventually, however, certain limitations against the power of federal government were “applied to the states” via a novel interpretation of the Fourteenth Amendment, thereby limiting the power of state governments over the affairs of their citizens.

Although the underlying legal theory was unclear to the average American, many Americans can still remember when criminals were rapidly being put back on the streets because their rights had been violated.  This was one of the more memorable episodes of “applying the Bill of Rights to the States.”  Whether or not one agrees with the legal reasoning, injustices were avoided in some cases, which seemed to give further warrant to the legal theory of applying the Bill of Rights to the States” by means of the Fourteenth Amendment.

For example, the Fourth Amendment prohibits unreasonable searches and seizures.  In 1949, the Fourth Amendment was “applied to the states” by means of the fourteenth Amendment in Wolf v. Colorado, 338 U.S. 25 (1949).  By 1961, this had extended the exclusionary rule to the states as well as the federal government.  That is, evidence obtained by unreasonable search or seizure had long been inadmissible as evidence in federal court because of the Fourth Amendment.  Now, State governments seeking to prosecute criminals were also prohibited from using evidence obtained though illegal search or seizure.  Mapp v.  Ohio, 367 U.S. 643 (1961).

Other famous cases where various provisions of the Bill of Rights were “applied to the states” by means of the Fourteenth Amendment include:  Malloy v. Hogan, 378 U.S. 1 (1964), where the Fifth Amendment privilege against self incrimination was extended to criminals being prosecuted by individual state governments; Duncan v. Louisiana, 391 U.S. 145 (1969), where the Sixth Amendment right to a trial by jury was extended to state criminal trials; Pointer v. Texas, 380 U.S. 400 (1965) where a defendant’s constitutional right to confront witnesses was applied to state trials as well; and Gideon v. Wainwright, 372 U.S. 335 (1963), where the defendant’s Sixth Amendment  right to assistance by counsel in felony cases was applied to state criminal trials.

These constitutional rights were originally granted only to defendants for Federal crimes such as mail fraud, where the trial was prosecuted by the Federal government in Federal Court.  For state offenses such as arson, rape or murder, state law was invoked, and each state had its own system for defining and protecting the rights of the accused.  Because only a handful of criminal cases are federal, the “rights of the accused” was not originally a big issue with society at large.  As noted in the above dates, most of these encroachments on state’s rights by the U.S. Supreme Court took place from 1960 to 1969.  Once select portions of the Bill of Rights was “applied to the states” in the above rulings, however, reports of criminal after criminal being set free on some legal technicality resulted in a mounting sense of public frustration.  By the early 1970s this sense of powerlessness and public frustration was cogently expressed in the memorable movie Dirty Harry.  In the movie, actor Clint Eastwood plays a hard-nosed detective, Harry Callaghan, (a.k.a. “Dirty Harry”) pursuing and trying to bring to justice a wicked murderer and kidnapper, against whom the evidence was overwhelming.  The criminal, however, was released from prison because his “rights” had been violated.  These were the criminal procedure rights of the Bill of Rights that had now been “applied to the states.”  Throughout the movie, the villain was always heard whining “I’ve got my rights.”  The movie well captured the public frustration of the encroachment on states rights by the Supreme Court, and the real-life consequences that attended it, including a revolving door for criminals whose “rights” were violated.  Perhaps because of movies like Dirty Harry, many Americans can still remember this period.

By now, most Americans take for granted that the rights, or at least most of the rights expressed in the Bill of Rights protect them against both Federal and State encroachment.  Few Americans however have ever come to understand the logic by which the Bill of Rights was “Applied to the States.”

The Fourteenth Amendment and the Incorporation of the Bill of Rights:

Following the Civil war, the Congress passed a series of “Civil War Amendments” including the Fourteenth.  The relevant portion is quoted below.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.  No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (Italics added).

Unlike the Bill of Rights, which originally placed limitations on the Federal government, the Fourteenth Amendment placed restrictions on State governments.  It prohibited the states from:

1)      Abridging the privileges and immunities of a citizen of the United States;

2)      Violating a person’s “due process” rights when depriving him of life, liberty or property; and

3)      Denying a person the equal protection of the laws.

The obvious questions raised by these guarantees are:

1.     What are the “privileges and immunities of a citizen of the United States” which the states must now recognize and protect?

2.     What activities of citizens constitute substantive rights of life, liberty or property, and what process is due before a state may deprive an individual of these “rights?” and

3.     Which laws are to be applied equally to protect which persons?

The Thirteenth, Fourteenth and Fifteenth amendments were adopted as a result of the Civil War in an effort to insure fair treatment of Negroes.  The “privileges and immunities” clause of the Fourteenth Amendment, however, has never been held by the courts to meaningfully restrict some state action or conduct.  It has amounted to little more than a majestic sounding phrase, which perhaps guides the interpretation of the other two clauses.

The first time the Supreme Court visited the question of whether the Fourteenth Amendment had application beyond the fair treatment of Negroes was in the Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 21 L.Ed. 394, 410 (1873), shortly after the Fourteenth Amendment was ratified.  That case revolved around the constitutionality of a state chartered monopoly.  Health risks associated with meat putrefying in the warm climate of New Orleans were exacerbated by the difficulty of monitoring the many butchers spread throughout the city.  In responding to this health risk, Louisiana had chartered a large corporation and granted it monopoly status in commercial areas involving slaughterhouses, landings for cattle, and stockyards.  The independent butchers who were financially injured by the law naturally sought to challenge the new law, but needed a legal theory on which to base their complaint, some legal ground to argue that the state had acted illegally.  Before the Fourteenth Amendment was ratified, only a few places within the Constitution placed any limits on the actions of independent state governments.  For example, Article I, Section 10 of the Constitution prohibits States from entering into Treaties, Alliances or Confederations.  Clearly none of these could serve as a legal pretext to prohibit a state from chartering a corporation to promote public health.

Under the provisions of the newly ratified Fourteenth Amendment, however, the butchers were able to craft the following argument:  They had been disenfranchised from their profession as butchers as a result of the state monopoly.  This amounted to the state “depriving” them of their jobs.  They contended their right to make a livelihood was a “substantive right” of “life, liberty or property,” under the Fourteenth Amendment.  They further believed that they were each entitled to an individual hearing on the matter to determine which of them ran unsanitary butcher shops, and that to legislate their job out of existence without individual hearings was therefore to deny them of their “substantive rights” without “due process of law.”  These two concepts would later come to be known as “substantive due process” and “procedural due process.”  It will be remembered that there are two “due process clauses” in the Constitution.  The 5th Amendment prohibits the Federal government from depriving one of life liberty or property without “due process,” and the 14th Amendment prohibits the State governments from depriving a citizen of “life, liberty or property” without “due process.”  Here, the butchers argued, the state legislature had “deprived” these workers of their occupations.  The legal challenge by the butchers therefore was based on the substantive and procedural guarantees of the “due process clause” of the 14th Amendment.

The significance of this case is that it was the first time the Supreme Court was called upon to determine if the “substantive” and “procedural” protections guaranteed by the “due process clause” of the Fourteenth Amendment extended beyond the question of fair treatment for men of all races.  Because these judges lived closer in time to the actual drafting and adopting of the Fourteenth Amendment, many scholars argue that this court had a better grasp of the “legislative history” and “original intent” of the Fourteenth Amendment than later courts would have.  In addressing the relevance of the Fourteenth Amendment to the complaints alleged by the butchers, the Supreme Court Justices living closest to the passage of the Fourteenth Amendment dismissed the “privileges and immunities” as basically a rhetorical flourish with little specific legal meaning.  Because of the common law tradition in the United States and England, wherein a higher court’s interpretation of a legal matter is binding on lower courts in the same jurisdiction, lawyers like to “go with a winner” when arguing a case.  As a result, few legal challenges have been advanced under the “Privileges and Immunities” clause of the Fourteenth Amendment since that time.  It has remained largely dormant.  Concerning the “due process clause” of the Fourteenth Amendment, the Slaughterhouse Court looked to the intent of the framers of the Fourteenth Amendment.  From this, the Court determined that the purpose of the Fourteenth Amendment was to protect Negroes from unfair and unequal treatment on racial grounds, and that it was never intended to prevent the State from creating a monopoly that might encroach on the livelihood of citizens of a state.  Quite simply, the state had the right to close down butcher shops by creating a state run monopoly, and did not need to have a trial in court to determine if every butcher ran a sanitary shop.  The loss of jobs by independent Louisiana butchers did not qualify as a “deprivation of property without due process of law” under the Fourteenth Amendment.  The exact words of the Court were:

“Under no construction of that provision [the due process clause of the Fourteenth Amendment] that we have ever seen, or any that we deem admissible, can the restraint imposed by the state of Louisiana upon the exercise of trade by the butchers of New Orleans be held to be a deprivation of property within the meaning of that provision.”  21 L.Ed. 394, 410 (1873).

In short, the Fourteenth Amendment was written to protect Negroes from unfair treatment after the Civil War.  It was not written to ensure that independent New Orleans butchers had the right to practice their profession if the legislature determined that health concerns of the state dictated otherwise.  The court continued:  “[We] doubt very much whether any action of a state not directed by way of discrimination against the Negroes as a class, or on account of their race, will ever be held to come within the purview of this provision.  It is so clearly a provision for that race and that emergency, that a strong case would be necessary for its application in any other.”[ref]Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 21 L.Ed. 394, 410 (1873)[/ref]  In other words, the Court basically said they couldn’t imagine any other purpose of the Fourteenth Amendment.  The due process clause of the Fourteenth Amendment was specifically and exclusively a law protecting Negroes from unfair or unequal treatment by the states.

Although lawyers like to “go with a winner,” when it came to the “due process clause” of the Fourteenth Amendment” there were nevertheless continuing attempts before various courts to expand the protections guaranteed by this phrase.  Eventually, the argument was set forth that the limitations placed on the Federal government by the Bill of Rights were now placed on the state governments.  Accordingly, rights previously enjoyed by citizens against Federal encroachment on their rights were now also rights against the state as well. The “total incorporation theory” and “partial incorporation theory” variously argued that the “substantive rights” guaranteed to American citizens against abuses by the Federal government by the Bill of Rights were “totally” or “partially” “applied to the states” by means of the Fourteenth Amendment.  We saw an example of this reasoning in the criminal procedure cases discussed above.

Ultimately, the Supreme Court, never adopted the “total incorporation theory.”  Only select portions of the Bill of Rights were ultimately applied to the States via the Fourteenth Amendment.  This would become known as the “partial incorporation theory.”  In Adamson v. Calif. 332 U.S. 46 (1947) for example, Justice Frankfurter, concurring with majority, rejected the total incorporation view.  He observed that over 70 years, 1 out of 43 judges held it.[ref]Adamson v. Calif. 332 U.S. 46, 62 (1947)[/ref]  “In the history of thought ‘natural law’ has a much longer and much better founded meaning and justification than such subjective selection as the first eight Amendments for incorporation into the Fourteenth.”[ref]Adamson v. Calif. 332 U.S. 46, 65 (1947)[/ref]  However, the Court did move away from the Slaughter-House decision that the purpose of the 14th Amendment was exclusively to protect Blacks.  Palko v. Connecticut, though affirming that “there is no such general rule” [applying the Bill of Rights to the states], nevertheless affirmed a partial incorporation of the Bill of Rights — “the specific pledge of particular amendments have been found to be implicit in the concept of ordered liberty and thus through the Fourteenth Amendment, become valid as against the states.”[ref]Palko v. Connecticut, 302 U.S. 319, 324-325 (1937)[/ref]   In other words, the Court was gradually expanding the reach of the Fourteenth Amendment to things beyond the protection of Blacks.  In the case wherein the Court determined that the sixth amendment right to trial by jury was incumbent not only on the Federal government in Federal trials, but on State governments as a result of the 14th Amendment,[ref]Duncan v. Louisiana, 391 U.S. 145 (1967)[/ref] the dissent criticized the partial incorporation theory for being random in selecting which portions of the Bill of Rights were “applied to the states” via the 14th Amendment, and which were not.

Even if I could agree that the question before us is whether Sixth Amendment jury trial is totally ‘incorporated into’ the fourteenth amendment] or totally ‘out’ [see Sec. II infra], I can find in the Court’s opinion no real reasons for concluding that it should be ‘in.’  The basis for distinguishing among clauses in the Bill of Rights cannot be that [only] some are old and much praised, or that only some have played an important role in the development of federal law.  These things are true of all.  The Court says that some clauses are more ‘fundamental’ than others, but [uses] this word in a sense that  *  *  *  [t]he definition of ‘fundamental’ thus turns out to be circular.[ref]Duncan at 183, dissent by Justice Harlan, Justice Stuart joining in the dissent.[/ref]

Frankfurter echoed the subjective element of the “total incorporation” theory:

Some are in and some are out, but we are left in the dark as to which are in and which are out.  Nor are we given the calculus for determining which go in and which stay out.

No one can deny that the historical context of the passage of the Fourteenth Amendment was the protection of Negroes in the face of rampant discrimination after the Civil War.  No one can deny, however, that the words of the Fourteenth Amendment are far broader than simply the protection of Negroes or minorities.  The words were not limited to protecting Negroes.  The expanse given to the Fourteenth Amendment depends in part, therefore, as to whether one interprets the Fourteenth Amendment on the historical background of its passage, or the actual words within this constitutional provision.  Even when a more expansive interpretation is accorded, the questions still remain.:  1)  What activities of an individual citizen are rights of life, liberty or property?” and  2)  What “process” is “due” before a particular “right” can be deprived?  As Frankfurter noted, “applying” select portions of the Bill of Rights to the state with the predictability of the Mandelbrot set is circular and arbitrary.  Even more debatable would be the later question of whether the rights “applied to the states” by the Fourteenth Amendment include the “penumbras” of the Bill of Rights — “rights” nowhere discussed in the Bill of Rights, but “rights” which a select priesthood of judges and lawyers imagine they can see if they stare wistfully at the text of the Bill of Rights in a darkened room.  Whatever the answers to these questions, the fact remains that the partial incorporation theory ultimately came to dominate the legal landscape.

The Incorporation Theory and the First Amendment

The first case where the “establishment clause” of the First Amendment was ever “applied to the states” was the case of Cantwell v. Connecticut 310 U.S. 296 (1940).  In the 1930s a Connecticut statute sought to govern how religious organizations could solicit money or other things of value.  The statue provide in part:

No person shall solicit money, services, subscriptions or any valuable thing for any alleged religious, charitable or philanthropic cause, from other than a member of the organization for whose benefit such person is soliciting. . .

This was a State law that was being brought under the scrutiny of the Supreme Court.  Because several states had historically been allowed to have religious entanglements, it would be first time that a state law was found to violate the “establishment clause” of First Amendment of the United States Constitution.  Up to that time, the First Amendment had been interpreted exclusively as a prohibition against the United States Congress making laws respecting an establishment of religion.

According to the facts of Cantwell, two Jehovah’s Witnesses were out proselytizing for their faith in an area “where about ninety percent of the residents are Roman Catholics.”  Their labors included “a bag containing books and pamphlets on religious subjects, a portable phonograph record and a set of records. . . .     A phonograph record, describing a book entitled ‘Enemies’, included an attack on the Catholic religion.  *  *  *  The facts which were held to support the conviction of Jesse Cantwell on the fifth count were that he stopped two men in the street, asked, and received permission to play a phonograph record, and played the record ‘Enemies’, which attacked the religion of the two men, who were Catholics.  Both were incensed. . .” Cantwell v. Connecticut 310 U.S. 296 (1940).

As a result of the confrontation, the Jehovah’s Witnesses were convicted of violating the state law cited above.  The conviction was appealed on the ground that the Connecticut law was “unconstitutional” in that it violated the First Amendment as applied to the states via the Fourteenth Amendment.  If the United States Congress had made the law, the Court would probably have had little trouble striking it down, finding that it was deliberately aimed at certain religious establishments, thereby violating the First Amendment.  But this was a state law, and up to this time, the First Amendment had only been prohibited the United States Congress from passing laws respecting an establishment of religion.  Abandoning the earlier reasoning of the Slaughterhouse Court, which limited the Fourteenth Amendment to equal treatment of Negroes, the Cantwell  Court held, for the first time, that, as a result of the doctrine of “incorporation,” the “establishment clause” of the First Amendment was applied to the states through the Fourteenth Amendment.  Accordingly, the above statute of the State of Connecticut was struck down as violating the First Amendment of the United States Constitution.  The Cantwell Court wrote:

First.  We hold that the statute, as construed and applied to the appellants, deprives them of their liberty without due process of law in contravention of the Fourteenth Amendment.  The fundamental concept of liberty embodied in that Amendment embraces the liberties guaranteed by the First Amendment.   The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.  The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws.  The constitutional inhibition of legislation on the subject of religion has a double aspect. . . .

Cantwell v. Connecticut, 310 U.S. 296, italics added.

Notwithstanding the incorporation of the First Amendment by the Fourteenth, and its application to the state government, it is instructive to make note of the italicized words in the above quote.  The Supreme Court still held a very literal interpretation to the subject, the verb, and the direct object of the First Amendment.  The subject of the First Amendment is “Congress,” and even when applied to the states, the prohibitions of the First Amendment were still limited to legislative bodies.

Comments are closed.