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.
Gerard N. Magliocca says:
I agree David. It’s as if the elder Harlan never existed. Though I think you put too much weight on the dicta in some of the earlier cases.
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October 28, 2009, 2:38 amJ. Aldridge says:
Interesting the framers of the 14th defined “due process” as proceedings in the administration of justice and the court defines it as something entirely different!
See: Misunderstanding the Fourteenth Amendment and the Incorporation Debacle
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October 28, 2009, 3:41 amJoe says:
Justice Douglas cited earlier “incorporation” promoters here.
As to “framers,” it is generally tedious but it can be said again, that there were various sentiments expressed by the “framers” and “ratifiers” of the 14A. This included a broad understanding of “due process” to include various substantive restraints as suggested by the dissents in the Slaughterhouse Cases (particularly Bradley). Anti-slavery thought also expressed this sentiment in some quarters.
Likewise, there was a growing sentiment that due process included an anti-caste/anti-class legislation component. For all of this, see e.g., here with citations including those that do reference the BOR as “privileges or immunities of national citizenship.”
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October 28, 2009, 6:42 amDavid Nieporent says:
See: PA Madison is a liar and a fraud. He fabricates quotes, and there’s no evidence that his claimed “credentials” exist. Nothing he says about the constitution is true, except by accident.
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October 28, 2009, 7:36 amMark Field says:
Since I so rarely get to say this, I want to add that I agree with Prof. Bernstein here.
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October 28, 2009, 10:03 amPeter Gordon says:
That is immature and in poor taste. I am familiar with Paul Madison and can say he is neither a liar or ever fabricated quotes. He provides citations in the noted link for others to determine whether he might be fabricating quotes as you assert.
What Madison says of the constitution is generally in the words of those who wrote it with very little Supreme Court obfuscation.
I will now go back to lurking.
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October 28, 2009, 10:04 amSeamus says:
Who is PA (or “Paul”) Madison, and how is he relevant to this discussion of incorporation?
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October 28, 2009, 12:12 pmNo Name says:
Can someone remind me why “incorporation” of, e.g., the second, fourth, and sixth amendments is necessary? Unlike the first amendment, they don’t simply limit what laws Congress can pass. Rather, they state rights that people possess. Since the Constitution is the supreme law of the land, why wouldn’t the states be required to honor those rights?
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October 28, 2009, 2:02 pmMark Field says:
The short answer is that the Supreme Court held that the BoR did NOT apply to the states in Barron v. Baltimore (1833).
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October 28, 2009, 4:41 pmDavid Nieporent says:
Perhaps while lurking, you happened to miss this thread where Madison’s serial fabrications were addressed.
Except when he says things like “Bingham showed no intention of making the entire first eight amendments applicable between a State and its own citizens,” despite the fact that (FWIW) Bingham explicitly said that this was the point of the Fourteenth Amendment.
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October 28, 2009, 5:37 pmwolfefan says:
Hi Peter Gordon —
Since you are familiar with Paul Madison, would you mind de-lurking again for a moment to tell me who he is? What is his background, what is the source of his expertise? I’ve heard that he is a former research fellow of some sort, but never have been able to find out where or when. Someone who posts here who appreciates Madison’s work says he is a former Supreme Court Archivist with the Library of Congress, but that doesn’t seem to be verifiable either. Training, education and the like are not dispositive for me in these things, but knowing more about who someone is and where they are coming from is always helpful in evaluating their arguments.
Thanks in advance for your help!
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October 28, 2009, 11:55 pmloki13 says:
1. I appreciate this post by Prof. Bernstein. I always enjoy it when he discussed substantive law (although I disagree strongly with his Lochner analysis). I think this post is entertaining primarily for its, “other than that, how was the play Mrs. Lincoln?” quality. I look forward to reading the book.
2. I concur with DMN’s critique of P. Madison. If it was noon, and P.M. told me that the sun was out, I would check to see if there was an eclipse.
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October 29, 2009, 8:28 pmJ. Aldridge says:
Only problem for you is Madison proves it. And no, Bingham did not explicitly say the point was to make the eight amendments a limitation of the states, only the denial of due process.
Keep trying to kill the messenger eh?
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November 1, 2009, 7:02 amJ. Aldridge says:
That thread where you made an absolute fool of yourself by not having any idea of what you were saying? Not a very good way to destroy the messenger.
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November 1, 2009, 7:06 amJ. Aldridge says:
He is a retired historian with the LOC. His original blog had a bio but when the guy who runs Immigration New Daily volunteered to provide him with a better blogging platform didn’t include it.
Those who attack Madison the retired person do so because they want to divert attention from his writings.
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November 1, 2009, 7:31 am