Since the incorporation doctrine is in the news today, I thought I’d share a relevant excerpt from Rehabilitating Lochner (forthcoming, U. Chicago Press, Spring 2011):
The Supreme Court … gradually applied most, but not all, of the Bill of Rights to the states, on a case-by-case basis. To blunt criticism that they were emulating their discredited pre-New Deal predecessors, the Justices and their defenders asserted that the liberty of contract cases involved illegitimate “substantive due process,” while “incorporation” cases did not.
Conceptually, however, the liberty of contract line of cases involved an exercise of what historian G. Edward White calls “guardian review,” policing the limits of state power, not “substantive due process.” The concept of “substantive due process” was primarily a post-New Deal innovation that did not become firmly established in American jurisprudence until the 1950s. Even if the Lochner line of cases could accurately be described as examples of substantive due process, exempting the incorporation cases from that moniker defied logic. For example, enforcing the First Amendment right of freedom of speech against the states via the Due Process Clause is literally an exercise in protecting a substantive right through that clause, and therefore is “substantive due process.”
In practice, the post-New Deal Court was doing precisely what its predecessor had done before it: identifying which rights it deemed fundamental to American liberty, and decreeing that the Due Process Clause protected those rights against the states. The Court, in fact, eventually out-Lochnered Lochner. Before the New Deal, the scope of liberty of contract and other Fourteenth Amendment due process rights recognized by the Supreme Court, including freedom of expression, was constrained by the states’ police powers. After the New Deal, police power considerations were eventually replaced with the test of whether government infringement on freedom of speech served a “compelling interest,” a significantly stricter test. The right to freedom of expression under the Due Process Clause, which the Court deemed a “preferred freedom,” quickly became far broader than the right to liberty of contract ever had been.
Nor did “incorporation” prevent the Justices’ from exercising discretion based on their ideological proclivities. First, the Court engaged only in “selective incorporation.” The rights not incorporated, such as the right to a grand jury hearing and the right to bear arms, were the rights that the Justices either didn’t approve of or thought were unimportant. Second, the Court interpreted some incorporated rights, such as the Fifth Amendment’s ban on taking private property without just compensation, and some other rights found explicitly in the Constitution’s text, such as Article I, Section 10’s ban on states impairing contractual obligations, far more narrowly than it interpreted rights favored by liberal intellectuals, such as freedom of expression. In short, if Lochner and other liberty of contract cases were examples of dubious “substantive due process” based on the Justices’ ideological proclivities, then so, a fortiori, were the incorporation cases.
Carl_W says:
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March 2, 2010, 5:43 pmThis is the Day — Oral Argument in McDonald v. Chicago « TeeJaw says:
[...] The Incorporation Doctrine [...]
March 2, 2010, 6:07 pmJ. Aldridge says:
One major fatal error in that: The Fourteenth’s “liberty” was well defined as meaning freedom from physical restraint and not anything anyone could use to invent “unenumerated” rights under.
I doubt seriously any state would had adopted an amendment that would had provided for “substantive due process” against their own general laws.
March 2, 2010, 6:08 pmMatt says:
J. Aldridge’s comment is typical of the usual conservative drivel whenever the DPC of the 14th is mentioned. On the contrary, J. Aldridge, in, for example, Meyer v. Nebraska, the Court in 1923 held: “While this court has not attempted to define with exactness the liberty thus guaranteed [by the Fourteenth Amendment's Due Process Clause], the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”
March 2, 2010, 6:15 pmJ. Aldridge says:
And that goes completely against what John Bingham said “liberty” meant and the states understood it meant under due process. The court really has no idea what they are talking about here.
March 2, 2010, 6:21 pmJ. Aldridge says:
March 2, 2010, 6:29 pmG.R. Mead says:
I would have taken issue with Justice Breyer’s assertion in arguing wiht Mr. Clement ( p. 26-27) that the “militia-related clause” is “light years different” from “the right to have a gun to shoot a burglar.” Mr. Justice Breyer could not be more wrong on the nature of the militia clauses and their function and structure — from the text itself. The proper answer to that is a straightforward and historical one based on the structure of the divided (and limited) sovereignty laid out in the Constitution.
We often talk about divided sovereignty as between the States and the Federal government — forgetting that in our system “the people” are also limited sovereigns and in two aspects: individually — wherefore they have inalienable rights, (and privileges and immunities); and collectively, wherefore they form (and if need be, dissolve) their forms of government on which they have conferred the balance of their sovereignty.
Within limits the property owner is sovereign on his territory, and his defense of the laws against burglary is not merely his personal defense but partakes directly of the militia function, as the microcosm or kernel of the individual sovereignty that when exercised collectively IS the Militia.
Lawfully shooting a burglar on one’s own property is “executing the laws of the Union” (Art. I Sec. Cl. 15) and hence a textually demonstrable militia function — even when conducted by an isolated member of that militia — hence, to perform that function, the individual citizen must have the right to arms — as militia — to preserve his function — AND his sovereignty (within its narrowed limits).
Structurally, the system we have has three legs — State sovereign, Federal sovereign and the individual sovereign. Only the militia clauses yoke all three together — a point Justice Scalia came very close to making in dispute with Mr. Feldman (at p. 41-42). Tying those two arguments together would have gone very far in bolstering the structural reason for the P&I clauses.
March 2, 2010, 6:36 pmcorneille1640 says:
Thanks for this post. While I am not a lawyer, I have long suspected that incorporation was akin to what might be called “substantive due process.”
I confess to being too ignorant of the issue and of the relevant literature/commentary to know if this is a commonly accepted way of looking at it. Is Mr. Bernstein’s view commonly accepted in the academy, or is his a more or less novel approach to incorporation?
March 3, 2010, 8:15 amPeter says:
The fact that the Lochner/freedom of contract cases stem from the same method of analysis as the incorp cases is an indictment of the incorp cases and not a reason to embrace Lochner/freedom of contract cases.
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