The term incorporation describes the case-by-case process through which the Supreme Court has determined provisions of the Bill of Rights — whether entire amendments or individual clauses — to be fundamental to due process and thus “incorporated” into the due process clause of the Fourteenth Amendment.
Once included in the due process clause, that provision is made applicable to the states and all forms of government in that state such as counties and municipalities in the same manner as it is to the federal government by virtue of its inclusion in the Bill of Rights. After a right is incorporated, it is to be assumed that future constitutional interpretations by the federal courts, which either expand or narrow that right, will apply equally to federal and state actions.
Supreme Court applied First Amendment rights to states beginning in 1925
First Amendment freedoms provide the earliest example of the selective incorporation of civil liberties protected by the Bill of Rights. The process, which began in 1925 and culminated in the 1940s, was among the least contentious concerning incorporation. There was, of course, significant disagreement among the justices in the 1920s and 1930s over the proper interpretation of the First Amendment’s guarantees, especially the appropriate standards by which to judge governmental action that restricts speech or printed material. Even as this debate took place, the Court incorporated the First Amendment rights, in stages, with little disagreement among the justices. The great debates over incorporation between Justices Hugo L. Black, on one side, and Justices Felix Frankfurter and John Marshall Harlan II, on the other, began after incorporation of the First Amendment had become settled law and focused on other provisions of the Bill of Rights.
An alternative approach to incorporation of the Bill of Rights is to base constitutional protection of a right or liberty directly on the Fourteenth Amendment’s prohibition on states depriving “any person within their jurisdiction of life, liberty, or property, without due process of law.”
According to the Supreme Court in Hurtado v. California (1884) and Palko v. Connecticut (1937), respectively, when state actions so violate the “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions” as to shock the conscience and be inconsistent with “a scheme of ordered liberty,” the Court should strike down those acts as violations of due process of law.
Some parts of Bill of Rights not considered fundamental liberties
Yet a third alternative is to determine that a provision of the Bill of Rights is not a fundamental principle of liberty and justice. In this case, the right in question would not be protected by the due process clause, either directly or by incorporation. Indeed, the Court has declined to incorporate all of the provisions of the Bill of Rights, leaving the Second, Third, Seventh, and elements of the Fifth and Eighth Amendments outside of application to the states.
The principal difference between the ordered liberty approach and incorporation is that incorporation applies the same protections and procedures to the states as the Court applies to the federal government. By contrast, even though an ordered liberty approach protects individuals against state actions that are inconsistent with deeply rooted traditions of liberty and justice, this approach requires judges to make an independent determination of what actions the states are required to take or refrain from taking in order to preserve those essential liberties. This case-by-case, fundamental fairness approach normally leaves the states with greater latitude than under judicial interpretations of the Bill of Rights.
Prior to the decision in Gitlow v. New York (1925), the Supreme Court had never held that the states were prohibited from abridging freedom of speech, freedom of the press, or the free exercise of religion.
1883 decision held that Bill of Rights only restricted federal government power
In Barron v. Baltimore (1833), Chief Justice John Marshall had held for the Court that the Bill of Rights restricted the powers of the federal government, but not those of the states. It was only with the ratification of the Thirteenth and Fourteenth Amendments that the liberty of individuals against state action came under the jurisdiction of federal courts (with the exception of a limited set of rights protected by Article 1, section 10, of the U.S. Constitution).
Initially, however, two important Supreme Court decisions had limited the reach of the Fourteenth Amendment. In the Civil Rights Cases (1883), the Court held that the rights guaranteed by the Bill of Rights were not those protected by the privileges and immunities clause of the Fourteenth Amendment. Rather, the privileges and immunities clause merely guaranteed the unique rights of national citizenship, such as the right to petition Congress and the right to travel on a passport issued by the federal government. This decision left the privileges and immunities clause virtually without significance. It has never recovered.
A year later, the decision in Hurtado v. California (1884) nearly did the same thing to the due process clause of the Fourteenth Amendment. The Court ruled in that case that because the Fifth Amendment contains both the requirement of “a presentment or indictment of a grand jury” and a due process clause, “due process of law” in the Fourteenth Amendment was neither meant nor intended to include the requirement of grand jury indictment, because this would render that provision of the Fifth Amendment superfluous.
According to Justice Stanley Matthews:
In the Fourteenth Amendment, by parity of reason, it [due process of law] refers to that law of the land in each State which derives its authority from the inherent and reserved powers of the State, exerted within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and the greatest security for which resides in the right of the people to make their own laws, and alter them at their pleasure. . . . It is not every act, legislative in form, that is law. . . . [Excluded], as not due process of law, [are] acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man’s estate to another, legislative judgments and decrees, and other similar special, partial and arbitrary exertions of power under the forms of legislation.
Although Hurtado only decided that the due process clause of the Fourteenth Amendment did not require the states to use grand jury indictments, it is but a small step from Hurtado to a holding that the due process clause of the Fourteenth Amendment does not protect any of the provisions in the Bill of Rights. The Supreme Court never took this step, but instead moved in the opposite direction.
Justice in Gitlow recognized that free speech, press are fundamental rights
Thus, the first task before the Court in 1920s when it decided to hear Benjamin Gitlow’s appeal for his conviction on charges of criminal anarchy was to determine whether the due process clause of the Fourteenth Amendment provided any protection against state abridgment of the freedom of speech and of the press. Only three years earlier, in dicta in Prudential Insurance Co. of America v. Cheek (1922), the Court had remarked that “neither the Fourteenth Amendment nor any other provision of the Constitution of the United States imposes upon the states any restrictions about ‘freedom of speech’ or the ‘liberty of silence’; nor, we may add, does it confer any right of privacy upon either persons or corporations.”
Although the Court rejected Gitlow’s appeal, Justice Edward Terry Sanford’s treatment of the question of whether the due process clause of the Fourteenth Amendment protected freedom of speech and of the press from state action represented a dramatic shift from its position only three years earlier:
For present purposes, we may and do assume that freedom of speech and of the press which are protected by the First Amendment from abridgment by Congress are among the fundamental personal rights and “liberties” protected by the due process clause of the Fourteenth Amendment from impairment by the States. We do not regard the incidental statement in Prudential Ins. Co. v. Cheek, 259 U.S. 530, 543, that the Fourteenth Amendment imposes no restrictions on the States concerning freedom of speech, as determinative of this question.
Still, the standard of review the Court applied in Gitlow to the New York statute was the very weak indulgent rationality test that was contained with the bad tendency test that the Court used to uphold the conviction in the case:
By enacting the present statute, the State has determined, through its legislative body, that utterances advocating the overthrow of organized government by force, violence and unlawful means are so inimical to the general welfare and involve such danger of substantive evil that they may be penalized in the exercise of its police power. That determination must be given great weight. Every presumption is to be indulged in favor of the validity of the statute. Mugler v. Kansas, 123 U.S. 623, 661. And the case is to be considered “in the light of the principle that the State is primarily the judge of regulations required in the interest of public safety and welfare;” and that its police statutes may only be declared unconstitutional where they are arbitrary or unreasonable attempts to exercise authority vested in the State in the public interest.
Justice Oliver Wendell Holmes Jr.’s dissent in Gitlow focused on the extremely deferential standard of review that the Court employed in this case and in other contemporary First Amendment cases, such as Abrams v. United States (1919) and Schaefer v. United States (1920).
His remarks on the question of the Fourteenth Amendment protection for freedom of speech were brief: ”The general principle of free speech, it seems to me, must be taken to be included in the Fourteenth Amendment, in view of the scope that has been given to the word ‘liberty’ as there used, although perhaps it may be accepted with a somewhat larger latitude of interpretation than is allowed to Congress by the sweeping language that governs or ought to govern the laws of the United States.”
It is noteworthy that Holmes was endorsing an ordered liberty and not an incorporationist approach to the due process clause of the Fourteenth Amendment. The statement that the states are allowed “a somewhat larger latitude of interpretation [of the principle of free speech] than is allowed to Congress” is consistent with an ordered liberty and not an incorporationist approach. Even more remarkable is the fact that the Court was unanimous in holding that freedom of speech is among the liberties protected by the due process clause and that it announced this holding without fanfare, as if this conclusion were a matter of course.
Court: Due process clause protects against state restriction on free speech, press
In subsequent cases over the next two decades, the Supreme Court reaffirmed its holding in Gitlow that the due process clause protects freedom of speech and of the press against state infringement. Although the Court did not completely incorporate the First Amendment until Everson v. Board of Education (1947), when freedom from the establishment of religion was included, the Court moved rapidly in the direction of applying the same protections for freedom of speech and the press under the Fourteenth Amendment as are understood to be guaranteed by the First Amendment.
Equally significant is the fact that many of these decisions were unanimous. For example, in Grosjean v. American Press Co. (1936), striking down a Louisiana law that interfered with freedom of the press, Justice George Sutherland wrote for a unanimous Court, “The First Amendment to the Federal Constitution provides that ‘Congress shall make no law . . . abridging the freedom of speech, or of the press. . . .’ While this provision is not a restraint upon the powers of the states, the states are precluded from abridging the freedom of speech or of the press by force of the due process clause of the Fourteenth Amendment.”
Sutherland’s opinion in Grosjean also explicitly limited Hurtado’s holding to those rights in the Fifth Amendment, thereby reopening the question of whether other rights guaranteed by the Bill of Rights were also protected by the due process clause.
Subsequent decisions limited Hurtado’s reach within the Fifth Amendment to the question of grand jury indictment alone.
Religious freedom from state restriction came in Jehovah Witnesses’ case
Although the Court in this era was moving in the direction of incorporating the First Amendment, its language was often sufficiently ambiguous to leave open for debate whether it was applying an ordered liberty or an incorporationist approach. This changed in 1940 with the Court’s decision in Cantwell v. Connecticut. Cantwell is a particularly important First Amendment case because it involves both freedom of speech and the free exercise of religion.
Newton Cantwell and his sons Jesse and Russell, all Jehovah’s Witnesses, were charged with and convicted of soliciting contributions toward the publication of the organization’s pamphlets without the proper state-issued certificate and inciting others to breach of the peace by playing an anti-Catholic recording.
The Supreme Court overturned the Cantwells’ convictions with Justice Owen J. Roberts writing:
“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.”
What made this decision incorporationist was the statement that the “Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws.” An ordered liberty approach assumes, as Holmes wrote in Gitlow, that the due process clause allows states “somewhat greater latitude” to legislate than is allowed Congress by virtue of the Bill of Rights. Incorporation requires that the same protections be applied to the states as to the federal government. This is precisely the position Roberts takes with respect to the First Amendment in Cantwell.
Justice Thomas questions whether First Amendment limits states from ‘establishment of religion’
It is noteworthy that the establishment clause of the First Amendment presents a special situation. It is difficult to describe the prohibition on the establishment of religion as an individual right or liberty. In this sense, it is quite different from the other First Amendment rights — the freedom of speech, freedom of the press, the right peaceably to assemble, and free exercise of religion. If the Fourteenth Amendment incorporates those individual rights that are fundamental to the U.S. system of liberty and justice, then one might ask why the establishment clause has been incorporated and applied to the states, as the Court expressly held in 1947.
Justice Clarence Thomas raised this question when he wrote in a concurrence in Elk Grove Unified School District v. Newdow (2004) that “[t]he text and history of the Establishment Clause strongly suggest that it [the Establishment Clause] is a federalism provision intended to prevent Congress from interfering with state establishments. Thus, unlike the Free Exercise Clause, which does protect an individual right, it makes little sense to incorporate the Establishment Clause.”
Court majorities continue to rely more heavily on precedents from Everson to the present than on Thomas’s arguments. Moreover, in a country with a religiously diverse population, established religions are so inimical to the free exercise of religion that the latter might not be able to survive without banning the former. Once the Court decided to incorporate the free exercise clause and make it applicable to the states, as it did in 1940 in Cantwell, then it had arguably to incorporate the establishment clause as well. This is Justice Black’s argument in Everson. It is also James Madison’s argument in “Memorial and Remonstrance Against Religious Assessments.”
Applying First Amendment protections to states took place in three phases
In short, the process of incorporating the First Amendment took place in three rather distinct steps or phases.
The first step, taken in Gitlow