Amdt14.S1.3.1.1.2 Due Process Clause and Incorporation: Early Doctrine

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 disadvantaged by state laws and policies first resorted unsuccessfully to the Privileges or Immunities Clause of § 1 for judicial protection.1 Then, claimants seized upon the Due Process Clause of the Fourteenth Amendment as guaranteeing certain fundamental and essential safeguards, without pressing the point of the applicability of the Bill of Rights.2 It was not until 1887 that a litigant contended that, although the Bill of Rights had not limited the states, nonetheless, to the extent that they secured and recognized the fundamental rights of man, they were privileges and immunities of citizens of the United States and were now protected against state abridgment by the Fourteenth Amendment.3 This case the Court decided on other grounds, but in a series of subsequent cases it confronted the argument and rejected it,4 though over the dissent of the elder Justice Harlan, who argued that the Fourteenth Amendment in effect incorporated the Bill of Rights and made them effective restraints on the states.5 Until 1947, this dissent made no headway,6 but in Adamson v. California7 a minority of four Justices adopted it. Justice Black, joined by three others, contended that his researches 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.8 Scholarly research stimulated by Justice Black's view tended to discount the validity of much of the history recited by him and to find in the debates in Congress and in the ratifying conventions no support for his contention.9 Other scholars, going beyond the immediate debates, found in the pre- and post-Civil War period a substantial body of abolitionist constitutional thought which could be shown to have greatly influenced the principal architects, and observed that all three formulations of § 1, privileges and immunities, due process, and equal protection, had long been in use as shorthand descriptions for the principal provisions of the Bill of Rights.10

Unresolved perhaps in theory, the controversy in fact has been mostly mooted through the selective incorporation of a majority of the provisions of the Bill of Rights.11 This process seems to have had its beginnings in an 1897 case in which the Court, without mentioning the Just Compensation Clause of the Fifth Amendment, held that the Fourteenth Amendment's Due Process Clause forbade the taking of private property without just compensation.12 Then, in Twining v. New Jersey13 the Court observed that it is possible that some of the personal rights safeguarded by the first eight Amendments against National action may also be safeguarded against state action, because a denial of them would be a denial of due process of law . . . . If this is so, it is not because those rights are enumerated in the first eight Amendments, but because they are of such nature that they are included in the conception of due process of law. And, in Gitlow v. New York,14 the Court in dictum said: 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. After quoting the language set out above from Twining v. New Jersey, the Court in 1932 said 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.15 The doctrine of this period was best formulated by Justice Cardozo, who observed that the Due Process Clause of the Fourteenth Amendment might proscribe a certain state procedure, not because the proscription was spelled out in one of the first eight amendments, but because the procedure offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,16 because certain proscriptions were implicit in the concept of ordered 'liberty.'17

As late as 1958, Justice Harlan asserted in an opinion of the Court that a certain state practice fell afoul of 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 . . . .18

But this process of absorption into due process, of rights that happened also to be specifically named in the Bill of Rights, came to be supplanted by a doctrine that had for a time co-existed with it: the doctrine of selective incorporation. This doctrine holds that the Due Process Clause incorporates the text of certain of the provisions of the Bill of Rights. Thus, in Malloy v. Hogan,19 Justice Brennan wrote: We have held that the guarantees of the First Amendment, the prohibition of unreasonable searches and seizures of the Fourth Amendment, and the right to counsel guaranteed by the Sixth Amendment, are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment. And Justice Clark wrote: First, 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.20 Similar language asserting that particular provisions of the Bill of Rights have been applied to the states through the Fourteenth Amendment's Due Process Clause may be found in numerous cases.21 Most of the provisions have now been so applied.22 The modern doctrine of incorporation, like some of the earlier cases described above, asks whether a right is both ‘fundamental to our scheme of ordered liberty’ and ‘deeply rooted in this Nation’s history and tradition.’23

Aside from the theoretical and philosophical considerations raised by the question whether the Bill of Rights is incorporated into the Fourteenth Amendment or whether due process subsumes certain fundamental rights that are named in the Bill of Rights, the principal relevant controversy is whether, once a guarantee or a right set out in the Bill of Rights is held to be a limitation on the states, the same standards that restrict the Federal Government restrict the states. The majority of the Court has consistently held that the standards are identical, whether the Federal Government or a state is involved,24 and has rejected the notion that the Fourteenth Amendment applies to the State only a 'watered-down, subjective version of the individual guarantees of the Bill of Rights.'25 Those who have argued for the application of a dual-standard test of due process for the Federal Government and the states, most notably Justice Harlan,26 but including Justice Stewart,27 Justice Fortas,28 Justice Powell,29 and Justice Rehnquist,30 have not only rejected incorporation, but have also argued that, if the same standards are to apply, the standards previously developed for the Federal Government would have to be diluted in order to give the states more leeway in the operation of their criminal justice systems.31 The Supreme Court has, however, since clarified that, with the exception of the Sixth Amendment’s guarantee of jury unanimity, incorporated rights are enforced according to federal standards.

Footnotes

  1.  Jump to essay-1Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873).
  2.  Jump to essay-2Walker 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). In Hurtado, in which the Court held that indictment by information rather than by grand jury did not offend due process, the elder Justice Harlan entered a long dissent arguing that due process preserved the fundamental rules of procedural justice as they had existed in the past, but he made no reference to the possibility that the Fourteenth Amendment due process clause embodied the grand jury indictment guarantee of the Fifth Amendment.
  3.  Jump to essay-3Spies v. Illinois, 123 U.S. 131 (1887).
  4.  Jump to essay-4In re Kemmler, 136 U.S. 436 (1890); McElvaine v. Brush, 142 U.S. 155 (1891); O’Neil v. Vermont, 144 U.S. 323 (1892).
  5.  Jump to essay-5In O’Neil v. Vermont, 144 U.S. 323, 370 (1892), Justice Harlan, with Justice Brewer concurring, 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 Field took the same position. Id. at 337. Thus, he said: 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). Justice Field was no longer on the Court and Justice Brewer did not in either case join Justice Harlan as he had done in O’Neil.
  6.  Jump to essay-6Cf. Palko v. Connecticut, 302 U.S. 319, 323 (1937), in which Justice Cardozo for the Court, including Justice Black, said: 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 Frankfurter, Memorandum on `Incorporation,' of the Bill of Rights Into the Due Process Clause of the Fourteenth Amendment, 78 Harv. L. Rev. 746 (1965). According to Justice Douglas' calculations, ten Justices had believed that the Fourteenth Amendment incorporated the Bill of Rights, but a majority of the Court at any one particular time had never been of that view. 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). It must be said, however, that many of these Justices were not consistent in asserting this view. Justice Goldberg probably should be added to the list. Pointer v. Texas, 380 U.S. 400, 410–14 (1965) (concurring opinion).
  7.  Jump to essay-7332 U.S. 46 (1947).
  8.  Jump to essay-8Id. at 74, Justice Black's contentions, id. at 68–123, were concurred in by Justice Douglas. Justices Murphy and Rutledge also joined this view but went further. I agree that the specific guarantees of the Bill of Rights should be carried over intact into the first section of the Fourteenth Amendment. But I am not prepared to say that the latter is entirely and necessarily limited by the Bill of Rights. Occasions may arise where a proceeding falls so far short of conforming to fundamental standards of procedure as to warrant constitutional condemnation in terms of a lack of due process despite the absence of a specific provision in the Bill of Rights. Id. at 124. Justice Black rejected this extension as an invocation of natural law due process. For examples in which he and Justice Douglas split over the application of nonspecified due process limitations, see, e.g., Griswold v. Connecticut, 381 U.S. 479 (1965); In re Winship, 397 U.S. 358 (1970).
  9.  Jump to essay-9The leading piece is Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? 2 Stan. L. Rev. 5 (1949).
  10.  Jump to essay-10Graham, 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.). The argument of these scholars tends to support either a selective incorporation theory or a fundamental rights theory, but it emphasized the abolitionist stress on speech and press as well as on jury trials as included in either construction.
  11.  Jump to essay-11Williams v. Florida, 399 U.S. 78, 130–32 (1970) (Justice Harlan concurring in part and dissenting in part).
  12.  Jump to essay-12Chicago, B. & Q. R.R. v. City of Chicago, 166 U.S. 226 (1897).
  13.  Jump to essay-13211 U.S. 78, 99 (1908).
  14.  Jump to essay-14268 U.S. 652, 666 (1925).
  15.  Jump to essay-15Powell v. Alabama, 287 U.S. 45, 68 (1932).
  16.  Jump to essay-16Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).
  17.  Jump to essay-17Palko v. Connecticut, 302 U.S. 319, 325 (1937). Justice Frankfurter was a strong advocate of 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). Justice Harlan followed him in this regard. 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 the 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, supra.
  18.  Jump to essay-18NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958).
  19.  Jump to essay-19378 U.S. 1, 10 (1964) (citations omitted). In Washington v. Texas, 388 U.S. 14, 18 (1967), Chief Justice Warren for the Court said that the Court has increasingly looked to the specific guarantees of the [Bill of Rights] to determine whether a state criminal trial was conducted with due process of law. And, in Benton v. Maryland, 395 U.S. 784, 794 (1969), Justice Marshall for the Court wrote: [W]e today find that the double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal in our constitutional heritage, and that it should apply to the States through the Fourteenth Amendment. In this process, the Court has substantially increased the burden carried by those who would defend a departure from the requirement of the Bill of Rights of showing that a procedure is fundamentally fair. That is, previously the Court had asked whether a civilized system of criminal justice could be imagined that did not accord the particular procedural safeguard. E.g., Palko v. Connecticut, 302 U.S. 319, 325 (1937). The present approach is to ascertain whether a particular guarantee is fundamental in the light of the system existent in the United States; the use of this approach can make a substantial difference. Duncan v. Louisiana, 391 U.S. 145, 149 n.14 (1968). See also Williams v. Florida, 399 U.S. 78 (1970); Apodaca v. Oregon, 406 U.S. 404 (1972); McDonald v. Chicago, 561 U.S. ___, No. 08-1521, slip op. (2010) (plurality opinion).
  20.  Jump to essay-20Abington School Dist. v. Schempp, 374 U.S. 203, 215 (1963). Similar formulations for the speech and press clauses appeared early. E.g., West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 639 (1943); 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.
  21.  Jump to essay-21E.g., Mapp v. Ohio, 367 U.S. 643 (1961); Klopfer v. North Carolina, 386 U.S. 213 (1967); Duncan v. Louisiana, 391 U.S. 145 (1968); Ashe v. Swenson, 397 U.S. 436 (1970); Baldwin v. New York, 399 U.S. 66 (1970).
  22.  Jump to essay-22The following list does not attempt to distinguish between those Bill of Rights provisions that have been held to have themselves been incorporated or absorbed by the Fourteenth Amendment and those provisions that the Court indicated at the time were applicable against the states because they were fundamental and not merely because they were named in the Bill of Rights. Whichever formulation was originally used, the former is now the one used by the Court. Duncan v. Louisiana, 391 U.S. 145, 148 (1968).

    First Amendment—

    Religion—

    Free exercise: Hamilton v. Regents, 293 U.S. 245, 262 (1934); Cantwell v. Connecticut, 310 U.S. 296, 300, 303 (1940).

    Establishment: Everson v. Board of Education, 330 U.S. 1, 3, 7, 8 (1947); Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203 (1948).

    Speech – Gitlow v. New York, 268 U.S. 652, 666 (1925); Fiske v. Kansas, 274 U.S. 380 (1927); Stromberg v. California, 283 U.S. 359 (1931).

    Press – Near v. Minnesota ex rel. Olson, 283 U.S. 697, 701 (1931).

    Assembly – DeJonge v. Oregon, 299 U.S. 353 (1937).

    Petition – DeJonge v. Oregon, 299 U.S. at 364, 365; Hague v. CIO, 307 U.S. 496 (1939); Bridges v. California, 314 U.S. 252 (1941).

    Second Amendment

    Right to keep and bear arms – McDonald v. Chicago, 561 U.S. ___, No. 08-1521, slip op. (2010).

    Fourth Amendment—

    Search and seizure – Wolf v. Colorado, 338 U.S. 25 (1949); Mapp v. Ohio, 367 U.S. 643 (1961).

    Fifth Amendment—

    Double jeopardy – Benton v. Maryland, 395 U.S. 784 (1969); Ashe v. Swenson, 397 U.S. 436 (1970) (collateral estoppel).

    Self-incrimination – Malloy v. Hogan, 378 U.S. 1 (1964); Griffin v. California, 380 U.S. 609 (1965).

    Just compensation – Chicago, B. & Q. R.R. v. City of Chicago, 166 U.S. 226 (1897).

    Sixth Amendment—

    Speedy trial – Klopfer v. North Carolina, 386 U.S. 213 (1967).

    Public trial – In re Oliver, 333 U.S. 257 (1948).

    Jury trial – Duncan v. Louisiana, 391 U.S. 145 (1968).

    Impartial Jury – Irvin v. Dowd, 366 U.S. 717 (1961); Turner v. Louisiana, 379 U.S. 466 (1965).

    Notice of charges – In re Oliver, 333 U.S. 257 (1948).

    Confrontation – Pointer v. Texas, 380 U.S. 400 (1965); Douglas v. Alabama, 380 U.S. 415 (1965).

    Compulsory process – Washington v. Texas, 388 U.S. 14 (1967).

    Counsel – Powell v. Alabama, 287 U.S. 45 (1932); Gideon v. Wainwright, 372 U.S. 335 (1963).

    Eighth Amendment—

    Excessive Bail — McDonald v. City of Chicago, 561 U.S. 742, 764 n.12 (2010); Schilb v. Kuebel, 404 U.S. 357, 365 (1971).

    Excessive Fines — Timbs v. Indiana, 586 U.S. ____, No. 17-1091, slip op. at 2 (2019).

    Cruel and unusual punishment – Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947); Robinson v. California, 370 U.S. 660 (1962).

    Provisions not applied are:

    Third Amendment—

    Quartering troops in homes – No cases.

    Fifth Amendment—

    Grand Jury indictment – Hurtado v. California, 110 U.S. 516 (1884).

    Seventh Amendment—

    Jury trial in civil cases in which value of controversy exceeds $20 – Cf. Adamson v. California, 332 U.S. 46, 64–65 (1947) (Justice Frankfurter concurring). See Minneapolis & St. L. R.R. v. Bombolis, 241 U.S. 211 (1916).

  23.  Jump to essay-23Timbs v. Indiana, 586 U.S. ____, No. 17-1091, slip op. at 7 (2019) (quoting McDonald v. City of Chicago, 561 U.S. 742, 767 (2010)).
  24.  Jump to essay-24Malloy v. Hogan, 378 U.S. 1, 10–11 (1964); Ker v. California, 374 U.S. 23 (1963); Griffin v. California, 380 U.S. 609 (1965); Baldwin v. New York, 399 U.S. 66 (1970); Williams v. Florida, 399 U.S. 78 (1970); Ballew v. Georgia, 435 U.S. 223 (1978); First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 780 n.16 (1978) (specifically the First Amendment speech and press clauses); Crist v. Bretz, 437 U.S. 28 (1978); Burch v. Louisiana, 441 U.S. 130 (1979).
  25.  Jump to essay-25Williams v. Florida, 399 U.S. 78, 106–107 (1970) (Justice Black concurring in part and dissenting in part), quoting Malloy v. Hogan, 378 U.S. 1, 10–11 (1964).
  26.  Jump to essay-26Justice Harlan first took this position in Roth v. United States, 354 U.S. 476, 496 (1957) (concurring in part and dissenting in part). See also Ker v. California, 374 U.S. 23, 45–46 (1963) (concurring). His various opinions are collected in Williams v. Florida, 399 U.S. 78, 129–33 (1970) (concurring in part and dissenting in part).
  27.  Jump to essay-27Williams v. Florida, 399 U.S. 78, 143–45 (1970) (concurring in part and dissenting in part); Duncan v. Louisiana, 391 U.S. 145, 173–83 (1968) (Justices Harlan and Stewart dissenting). But see Apodaca v. Oregon, 406 U.S. 404, 414 (1972) (dissenting). See also Crist v. Bretz, 437 U.S. 28 (1978) (Justice Stewart writing opinion of the Court).
  28.  Jump to essay-28Bloom v. Illinois, 391 U.S. 194, 211 (1968) (concurring).
  29.  Jump to essay-29Johnson v. Louisiana, 406 U.S. 356, 366 (1972) (concurring); Crist v. Bretz, 437 U.S. 28, 52–53 (1978) (dissenting, joined by Chief Justice Burger and Justice Rehnquist). But see First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 780 n.16 (1978) (rejecting theory in First Amendment context in opinion for the Court, joined by Chief Justice Burger).
  30.  Jump to essay-30Buckley v. Valeo, 424 U.S. 1, 290 (1976) (concurring in part and dissenting in part); First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 822 (1978) (dissenting). See also Crist v. Bretz, 437 U.S. 28, 52–53 (1978) (joining Justice Powell's dissent). Justice Jackson also apparently held this view. Beauharnais v. Illinois, 343 U.S. 250, 288 (1952) (dissenting).
  31.  Jump to essay-31E.g., Williams v. Florida, 399 U.S. 78, 129–38 (1970) (Justice Harlan concurring in part and dissenting in part); Bloom v. Illinois, 391 U.S. 194, 213–215 (1968) (Justice Fortas concurring). But see Williams v. Florida, 399 U.S. at 106–08 (Justice Black concurring in part and dissenting in part).