The Fourteenth Amendment and The Doctrine of Incorporation

The Fourteenth Amendment The doctrine of incorporation states that the Due Process Clause of the Fourteenth Amendment applies the protections of the Bill of Rights to the states. Incorporation can be selective, including only those rights deemed “fundamental,” such as those protected by the First Amendment. Or it can be full, applying all of the Bill of Rights. The Supreme Court adopted selective incorporation in 1938, and has never explicitly moved to full incorporation. But after a series of decisions in the 1960s, the Supreme Court has approached near-full incorporation, with only a few technical provisions not applied to the states.

The Fourteenth Amendment After the Civil War, the governments of the former slave states sought to restrict the rights of the freedmen through the passage of the “black codes.”

The Fourteenth Amendment As a response, the Congress passed a series of measures aimed at protecting blacks in the South. They also authorized the stationing of Union troops to enforce these laws, a period known as “Reconstruction.” These included: The Civil Rights Acts of 1866 and The Fifteenth Amendment (1870) forbidding states from denying the right to vote “on account of race, color or previous condition of servitude.”

The Fourteenth Amendment But the most important of these was the Fourteenth Amendment, passed by Congress in 1866, and ratified in Southern states were required to ratify it to rejoin the Union. Only Section 1 still matters today. Sections 2, 3, and 4 concern the aftermath of the Civil War: the disqualification of Confederate officials from holding public office, the treatment of Confederate debt, etc.

The Fourteenth Amendment Section 1 includes: The Citizenship Clause: “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.”

The Fourteenth Amendment The “Privileges and Immunities” Clause: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

The Fourteenth Amendment The “Due Process” Clause: “Nor shall any State deprive any person of life, liberty, or property, without due process of law…”

The Fourteenth Amendment The “Equal Protection” Clause: “Nor deny to any person within its jurisdiction the equal protection of the laws.”

The Citizenship Clause The original Constitution did not specify who was to be considered a U.S. citizen. The Citizenship Clause overturned the Dred Scott decision, in which Chief Justice Roger Taney declared that the Constitution was never intended to treat blacks as U.S. citizens since they were considered a “subordinate and inferior class of beings.” Establishes the doctrine of “birthright citizenship”: to be born in the United States, is to be born a citizen. Congress can create other standards for citizenship, e.g. the children of U.S. citizens born abroad can be considered citizens.

The “Equal Protection” Clause Despite the “Equal Protection” Clause, many Southern states adopted “Jim Crow” laws segregating blacks and whites. The Supreme Court upheld these laws in Plessy v. Ferguson (1896), which declared a doctrine of “separate but equal.” This was overturned by Brown v. Board of Education (1954). The Court went on to find most other racially discriminatory laws to be unconstitutional. In Reed v. Reed (1971) and Frontiero v. Richardson (1972), the Supreme Court applied the Equal Protection Clause to overturn sex-based discrimination, though it has never taken as strict an approach as with race. Ruth Bader Ginsburg helped argue both cases. The Supreme Court has found other “suspect classifications” under the Equal Protection Clause: national origin, religion, alienage, illegitimacy. It has also found other classifications to be unconstitutional if they are not rationally related to serving a legitimate state interest.

The “Privileges and Immunities” Clause In the 1873 Slaughterhouse Cases, the Supreme Court rendered the “Privileges and Immunities” Clause essentially meaningless by creating a doctrine of separate federal and state citizenship.

The “Due Process” Clause In Barron v. Baltimore (1833), Chief Justice John Marshall declared that the Bill of Rights applied only to the federal government, not to the states. Representative John Bingham (R-OH), the “Father of the Due Process Clause” appears to have intended that it would overturn Barron and apply the Bill of Rights to the states. But the Supreme Court did not embrace this doctrine for several decades.

Gitlow v. New York (1925) Benjamin Gitlow, a radical Socialist, challenged a New York law forbidding the advocacy of the violent overthrow of the government. The Supreme Court ruled against Gitlow, declaring the law to be constitutional. But in the majority opinion, Justice Edward Sanford declared that freedom of speech and press were among the fundamental rights protected by the Due Process Clause, specifically the word “liberty.”

The Doctrine Expands In Fiske v. Kansas (1927), Stromberg v. California (1931), and Near v. Minnesota (1931), the Supreme Court used the Due Process Clause to overturn state laws that violated the freedoms of speech and the press. In Near, Chief Justice Charles Evans Hughes declared that these rights were “essential personal liberty” protected by the Due Process Clause’s “guarantee of fundamental rights of person and property.” In Powell v. Alabama (1932), the Supreme Court used the Due Process Clause to defend the right to a fair trial and to counsel in capital criminal cases.

The Doctrine Expands The doctrine of incorporation was applied to the free exercise of religion in Hamilton v. Regents of the University of California (1934) and to the freedoms of assembly and petition in De Jonge v. Oregon (1937).

Selective Incorporation In Palko v. Connecticut (1937), Justice Benjamin Cardozo declared a doctrine of selective incorporation, that the Due Process Clause incorporated some basic rights that were essential to “the concept of ordered liberty.” These included those protected by the First Amendment. Other liberties protected by the Bill of Rights, such as the guarantee against self-incrimination or the prohibition against double jeopardy, were not fundamental to liberty, and so were not incorporated.

Total Incorporation In his dissent in Adamson v. California (1947), Justice Hugo Black went farther than Cardozo had. He argued that the Due Process Clause incorporated all of the Bill of Rights. This position is known as “total incorporation.” It has never attained majority support on the Supreme Court. Nevertheless, Black emerged as the leading voice on the Court urging incorporation of the procedural rights protected by the Fourth through Eighth Amendments.

Mapp v. Ohio (1961) In Wolf v. Colorado (1949), the Court incorporated the Fourth Amendment’s protection against “unreasonable searches and seizures.” In Mapp v. Ohio (1961), the Court declared that states had to obey the “exclusionary rule”: illegally obtained evidence could not be admitted in court. The Court later recognized a series of exceptions to this principle.

Gideon v. Wainwright (1963) In Gideon v. Wainwright (1963), the Supreme Court extended the Sixth Amendment right to counsel to all but the most trivial cases. States had to provide counsel to those unable to afford a lawyer. This led directly to the creation of the public defender system.

Malloy v. Hogan (1964) In Malloy v. Hogan (1964), the Supreme Court incorporated the Fifth Amendment guarantee against self-incrimination. Defendants in state court could not be forced to give testimony against themselves.

Miranda v. Arizona (1966) In Escobedo v. Illinois (1964), the Supreme Court ruled that suspects undergoing interrogation must be informed of their right to remain silent, and to the assistance of counsel. Two years later, the Supreme Court expanded this ruling in Miranda v. Arizona.

Miranda v. Arizona (1966) Chief Justice Earl Warren laid out the principles that became the famous “Miranda warning.” Arrested criminal suspects must be told: They have the right to remain silent. Anything they say may be used against them. They have the right to have an attorney with them before any questioning begins. If they want an attorney but cannot afford one, one will be provided for free. If they do not want a lawyer and are willing to be questioned, they may be, as long as they reached this decision “knowingly and intelligently.” If suspects agree to be questioned, they can shut off interrogation whenever they want.

Miranda v. Arizona (1966) Highly controversial at the time, the “Miranda warning” has become a familiar part of the criminal justice system. Subsequent decisions incorporated the rights to a speedy trial, to trial by an “impartial” jury, to trial by jury in criminal cases, and to protection against double jeopardy.

The Right to Privacy In Griswold v. Connecticut (1965), the Supreme Court overturned a Connecticut law banning the use of birth control devices, or giving information about their use.

The Right to Privacy Justice William Douglas declared that five amendments had “penumbras” that created “zones of privacy.” The First Amendment protection of the right of association. The Third Amendment prohibition on quartering of soldiers in home. The Fourth Amendment guarantee against unreasonable searches and seizures. The Fifth Amendment guarantee against compulsory self-incrimination. Hence the right to privacy was one of the unnamed rights protected by the Ninth Amendment, and then incorporated by the Due Process Clause of the Fourteenth Amendment.

The Right to Privacy In his dissent, Justice Hugo Black called the Connecticut law “uncommonly silly” and “asinine,” but called privacy a “broad, abstract, and ambiguous concept.” Even though Black claimed that “I like my privacy as well as the next one,” he could find no specific constitutional provision protecting such a right.

The Right to Privacy In 1973, in Roe v. Wade, the Supreme Court declared that the right to privacy enunciated in Griswold made all state bans on abortion unconstitutional. Justice Harry Blackmun declared that while the right to abortion was not absolute, states could not restrict it during the first trimester. Later in pregnancy, states had a greater ability to impose regulations in order to protect the “potentiality of human life.”

The Right to Privacy The Supreme Court has subsequently narrowed the right to abortion declared in Roe v. Wade. In Planned Parenthood of Pennsylvania v. Casey (1992), the Court abandoned the trimester system in favor of a test of whether a law imposed an “undue burden” in “the path of a woman seeking an abortion of a nonviable fetus.”

The Right to Privacy In Bowers v. Hardwick (1986), the Supreme Court declared that the right to privacy did not protect consensual homosexual acts committed in private. In Lawrence v. Texas (2003), the Court overturned Bowers, and declared all “sodomy laws” to be unconstitutional.