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.