Fourteenth Amendment, Section 1:

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 or 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.

Following the ratification of the Fourteenth Amendment, litigants challenging state laws and policies pursued several different strategies to raise constitutional challenges under the Fourteenth Amendment. In early litigation, plaintiffs unsuccessfully invoked the Fourteenth Amendment’s Privileges or Immunities Clause to challenge state regulations.1 Litigants in other cases argued that the Due Process Clause of the Fourteenth Amendment guarantees certain fundamental and essential rights, but did not specifically argue that the Amendment incorporated the Bill of Rights to restrict state government action.2

Beginning in the 1880s, some litigants contended that, although the Bill of Rights as originally ratified did not limit the states, to the extent the Bill of Rights secured and recognized fundamental rights, those rights were rights, privileges, or immunities of citizens of the United States and were now protected against state abridgment by the Fourteenth Amendment. In the 1887 decision Spies v. Illinois, the Court resolved one such case on other grounds.3 In a series of subsequent cases, the Court confronted the argument and rejected it.4 The elder Justice John Marshall Harlan and other Justices dissented in some of these cases, arguing that the Fourteenth Amendment in effect incorporated the Bill of Rights such that its guarantees also restrain the states.5

In 1947, in Adamson v. California, a minority of four Justices would have held that the Fourteenth Amendment “was intended to, and did make the [ Fifth Amendment] prohibition against compelled testimony applicable to trials in state courts.” 6 Justice Hugo Black, joined by three others, stated that his research into the history of the Fourteenth Amendment left him in no doubt “that the language of the first section of the Fourteenth Amendment, taken as a whole, was thought by those responsible for its submission to the people, and by those who opposed its submission, sufficiently explicit to guarantee that thereafter no state could deprive its citizens of the privileges and protections of the Bill of Rights.” 7 Justice Black’s analysis prompted scholarly debate over whether those who drafted and ratified the Fourteenth Amendment intended for the Amendment to apply the Bill of Rights to the states.8 Against that background, beginning at the end of the nineteenth century, the Court issued a series of decisions that imposed restrictions on state governments that were either similar to or directly derived from restrictions the Bill of Rights imposes on the federal government.

Early due process cases did not hold that the Fourteenth Amendment incorporated the Bill of Rights against the states directly but instead held that the Bill of Rights and the Fourteenth Amendment’s Due Process Clause each separately enshrined certain fundamental rights. Thus, in an 1897 case, the Court held that the Fourteenth Amendment’s Due Process Clause forbade the taking of private property without just compensation but did not mention the Just Compensation Clause of the Fifth Amendment.9 In 1908, in Twining v. New Jersey, the Court observed,

In the 1925 case Gitlow v. New York, the Court said in dictum: “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.” 11 In two opinions from the 1930s, Justice Benjamin Cardozo summarized the doctrine of this period by observing that the Fourteenth Amendment’s Due Process Clause might proscribe a certain state action, not because the proscription was spelled out in one of the first eight amendments, but because certain proscriptions were “implicit in the concept of ordered ‘liberty,’” 12 such that state government action that violates them “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” 13 As late as 1958, Justice Harlan opined that a state practice violated the Fourteenth Amendment because “[i]t is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.” 14

In contrast to the foregoing approach of holding that the Bill of Rights and the Due Process Clause separately protect some of the same rights, the doctrine of incorporation holds that the Due Process Clause renders provisions of the Bill of Rights directly applicable to the states. The practice of looking to the Bill of Rights to identify rights protected by the Fourteenth Amendment emerged in Supreme Court cases in the first half of the twentieth century.15 Some Justices advocated for a doctrine of total incorporation, which would have held that the Fourteenth Amendment’s Due Process Clause applied the Bill of Rights to the states in its entirety.16 Others preferred the doctrine of selective incorporation, which would apply certain fundamental provisions of the Bill of Rights to the states on a case-by-case basis.17 A majority of the Court never embraced total incorporation. Over time, the doctrine of selective incorporation gained prominence, coming to dominate Fourteenth Amendment due process jurisprudence by the 1960s. Thus, in the 1964 case Malloy v. Hogan, Justice William Brennan wrote:

Similarly, in a 1963 case, Justice Thomas Clark wrote that “this Court has decisively settled that the First Amendment’s mandate that ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof’ has been made wholly applicable to the States by the Fourteenth Amendment.” 19

Footnotes

1

Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873); see also Amdt14.S1.2.1 Privileges or Immunities of Citizens and the Slaughter-House Cases.

2

Walker v. Sauvinet, 92 U.S. 90 (1876); United States v. Cruikshank, 92 U.S. 542 (1876); Hurtado v. California, 110 U.S. 516 (1884); Presser v. Illinois, 116 U.S. 252 (1886).

3

Spies v. Illinois, 123 U.S. 131 (1887).

4

In re Kemmler, 136 U.S. 436 (1890); McElvaine v. Brush, 142 U.S. 155 (1891); O’Neil v. Vermont, 144 U.S. 323 (1892); Palko v. Connecticut, 302 U.S. 319, 323 (1937), ( “We have said that in appellant’s view the Fourteenth Amendment is to be taken as embodying the prohibitions of the Fifth. His thesis is even broader. Whatever would be a violation of the original bill of rights (Amendments I to VIII) if done by the Federal Government is now equally unlawful by force of the Fourteenth Amendment if done by a state. There is no such general rule.” ). See Felix Frankfurter, Memorandum on ‘Incorporation,’ of the Bill of Rights Into the Due Process Clause of the Fourteenth Amendment, 78 Harv. L. Rev. 746 (1965).

5

Dissenting in O’Neil v. Vermont, 144 U.S. 323, 370 (1892), Justice Harlan argued that “since the adoption of the Fourteenth Amendment, no one of the fundamental rights of life, liberty or property, recognized and guaranteed by the Constitution of the United States, can be denied or abridged by a State in respect to any person within its jurisdiction. These rights are, principally, enumerated in the earlier Amendments of the Constitution.” Justice Stephen Field took the same position, writing: “While therefore, the ten Amendments, as limitations on power, and so far as they accomplish their purpose and find their fruition in such limitations, are applicable only to the Federal government and not to the States, yet, so far as they declare or recognize the rights of persons, they are rights belonging to them as citizens of the United States under the Constitution; and the Fourteenth Amendment, as to all such rights, places a limit upon state power by ordaining that no State shall make or enforce any law which shall abridge them.” Id. at 363. Justice Harlan reasserted this view in Maxwell v. Dow, 176 U.S. 581, 605 (1900) (dissenting opinion), and in Twining v. New Jersey, 211 U.S. 78, 114 (1908) (dissenting opinion). According to Justice William Douglas, ten Justices who served between the ratification of the Fourteenth Amendment and the 1960s believed that the Amendment incorporated the Bill of Rights, but those Justices never constituted a majority of the Court. Gideon v. Wainwright, 372 U.S. 335, 345–47 (1963) (concurring opinion). See also Malloy v. Hogan, 378 U.S. 1, 4 n.2 (1964). Justice Arthur Goldberg was not included on Justice Douglas’s list, but also expressed this view. Pointer v. Texas, 380 U.S. 400, 410–14 (1965) (concurring opinion).

6

332 U.S. 46, 68 (1947) (Black, J., dissenting).

7

Id. at 74.

8

Compare I. Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?, 2 Stan. L. Rev. 5 (1949) with Graham,Early Antislavery Backgrounds of the Fourteenth Amendment, 1950 Wisc. L. Rev. 479, 610; Graham, Our ‘Declaratory’ Fourteenth Amendment, 7 Stan. L. Rev. 3 (1954); J. tenBroek, Equal Under Law (1965 enlarged ed.).

9

Chi., Burlington & Quincy R.R. v. City of Chicago, 166 U.S. 226 (1897).

10

211 U.S. 78, 99 (1908). See also Powell v. Alabama, 287 U.S. 45, 67–68 (1932) (quoting Twining and stating that “a consideration of the nature of the right and a review of the expressions of this and other courts, makes it clear that the right to the aid of counsel is of this fundamental character” ).

11

268 U.S. 652, 666 (1925).

12

Palko v. Connecticut, 302 U.S. 319, 325 (1937).

13

Snyder v. Massachusetts, 291 U.S. 97, 105 (1934). Justice Frankfurter embraced this approach to the Fourteenth Amendment’s Due Process Clause, e.g., Rochin v. California, 342 U.S. 165 (1952); Adamson v. California, 332 U.S. 46, 59 (1947) (concurring opinion), as did Justice Harlan, e.g., Benton v. Maryland, 395 U.S. 784, 801 (1969) (dissenting opinion); Williams v. Florida, 399 U.S. 78, 117 (1970) (concurring in part and dissenting in part). For early applications of these principles to void state practices, see Moore v. Dempsey, 261 U.S. 86 (1923); Meyer v. Nebraska, 262 U.S. 390 (1923); Tumey v. Ohio, 273 U.S. 510 (1927); Powell v. Alabama, 287 U.S. 45 (1932); Mooney v. Holohan, 294 U.S. 103 (1935); Brown v. Mississippi, 297 U.S. 278 (1936); Rochin v. California, 342 U.S. 165 (1952).

14

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958).

15

E.g., Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) ( “The fundamental concept of liberty embodied in [the Fourteenth] Amendment embraces the liberties guaranteed by the First Amendment.” ); W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 639 (1943) (discussing “the due process clause of the Fourteenth Amendment as an instrument for transmitting the principles of the First Amendment” ); cf. Gitlow, 268 U.S. at 666.

16

See, e.g., Adamson v. California, 332 U.S. 46, 71–72 (1947) (Black, J., dissenting); O’Neil v. Vermont, 144 U.S. 323, 370 (1892) (Harlan, J., dissenting).

17

See, e.g., Palko v. Connecticut, 302 U.S. 319, 326 (1937); Adamson, 332 U.S. at 57 (1947) (Frankfurter, J., concurring).

18

378 U.S. 1, 10 (1964) (citations omitted).

19

Abington Sch. Dist. v. Schempp, 374 U.S. 203, 215 (1963). Similar formulations for the Speech and Press Clauses appeared early. E.g., Barnette, 319 U.S. at 639; Schneider v. Irvington, 308 U.S. 147, 160 (1939). In Griffin v. California, 380 U.S. 609, 615 (1965), Justice Douglas stated that “the Fifth Amendment, in its direct application to the Federal Government, and, in its bearing on the States by reason of the Fourteenth Amendment, forbids” the state practice at issue.