Louis Brandeis and the Incorporation Doctrine

I’ve read most of Mel Urofsky’s new biography of Louis Brandeis, and it’s an extremely good, and very informative, book.  But I’m afraid that Mel vastly exaggerates Brandeis’s influence on the Supreme Court’s adoption of the “incorporation doctrine”, to wit:

(1) p. 618: “Scholars now believe that the Fourteenth Amendment … was intended to extend the protection of the Bill of Rights to the states.  Brandeis took this position in his dissent in Gilbert v. Minnesota.”  False.  You can read the dissent here. The last paragraph contains everything Brandeis wrote about the Fourteenth Amendment in that opinion, and he certainly did not take the position Mel attributes to him, or anything like it.

(2) p.619 “Within a few years the first fruits of Brandeis’s dissent appeared in, of all places, an opinion of Justice McReynolds [Meyer v. Nebraska]”.  False.  There is no reason to believe that Justice McReynolds’ opinion was influenced in any way by Brandeis’s Gilbert dissent.   Rather, McReynolds, who hated Brandeis both as a Jew and as a “radical”, cited a long string of liberty-of-contract decisions, including Lochner v. New York.

(3) p. 619 McReynolds in Meyer “found a violation of free speech,” and “applied the clear-and-present danger test” without using those words.  False.  Meyer was not decided as a free speech case, and neither the concept of freedom of speech nor the text of the First Amendment appears in the opinion.

(4) p. 641 “Brandeis’s assertion that the Due Process Clause implicated rights other than property is the starting point for the idea of incorporation by which the states become bound by the same standards for individual liberties as the national government.”  False.  The first Justice Harlan had argued over a period of decades, always in dissent (but getting as many as two additional votes, includng, if I recall correctly, Justice Stephen Field’s), that the rights enumerated in the Bill of Rights also applied to the states.

Earlier, on p. 619, Mel correctly notes that Brandeis only identified the rights to speech, education, choice of profession and travel [only the first of which is actually specifically mentioned in the Bill of Rights] as fundamental rights deserving protection under the Due Process Clause.

And it’s not like the idea of applying some of the rights in the Bill of Rights to the state was otherwise unheard of before Brandeis. In 1908, the Supreme Court stated 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.”   A year earlier, the Court had reserved for the future the question of whether “there is to be found in the Fourteenth Amendment a prohibition [of restriction of freedom of speech] similar to that in the First.”

Moreover, Brandeis would have preferred that the Due Process Clause not apply to any substantive rights at all, but insisted that all fundamental rights be protected if liberty of contract was to be protected.

Also, in 1897, well before Brandeis joined the Court a unanimous Supreme Court noted that the Fourteenth Amendment’s Due Process Clause protected not just liberty of contract, but “freedom from all substantial arbitrary impositions and purposeless restraints.”

Finally, if we are going to anachronistically consider pre-New Deal Due Process opinions that protect rights that happen to be mentioned in the Bill of Rights to be “incorporation” cases, even when no provision of the Bill of Rights was relied upon, it turns out that the Supreme Court “incorporated” the Takings Clause of the Fifth Amendment in 1897, twenty-three years before Brandeis’ dissent in Gilbert.

(5) p.632: Brandeis “especially wanted to advance the idea that the Fourteenth Amendment incorporated the Bill of Rights and applied it to the states.”  False.  Again, the pre-World War II Justice who consistently plugged something resembling the modern incorporation doctrine was Harlan, and it was he, not Brandeis, whom Justice Hugo Black later cited in advocating incorporation (though unlike Black, Harlan believed that the Fourteenth Amendment also protected unenumerated rights).

(6) p. 632 “Brandeis had first planted the seed [of the incorporation doctrine]” and McReynolds had advanced the cause in his two school opinions [Meyer and Pierce v. Society of Sisters].   False.  Neither case had anything to do with incorporation of the Bill of Rights.  Both cases were quite clearly what we now refer to as pure “substantive due process” opinions, applying unenumerated rights against the states via the Due Process Clause without any reference, even implicit, to the Bill of Rights.

I think I had noticed a few other examples, but I can’t find them right now, and I think I’ve made my point.

Don’t let this discourage you from buying this book, which is a wonderful resource on the life and accomplishments of Justice Brandeis. But on this particular issue of Brandeis’s influence on incorporation, it happens to be wrong.

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