Those responsible for adding the Bill of Rights to the new federal constitution intended those amendments to act as limits on the national government only, a point illustrated as succinctly as possible by the opening words of the First Amendment: ‘‘Congress [emphasis added] shall make no law . . . .’’ Relying on the still recent history of the amendments’ framing and ratification, Chief Justice John Marshall in Barron v. Baltimore, 7 Pet. (32 U.S.) 243 (1833), confirmed that understanding by rejecting a claim that the Fifth Amendment’s prohibition on the taking of private property for public use without just compensation applied to state governments.
In 1868, the Fourteenth Amendment was added to the Constitution. Section 1 states (in part): ‘‘No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law . . .’’ The question of whether the amendment’s framers intended that one (or both) of these clauses would apply some or all of those first ten amendments to the states has been the subject of extensive scholarly and judicial commentary and controversy.
This incorporation debate (and the evolution of incorporation doctrine) need not be addressed here, except to note that, throughout the last decades of the nineteenth and early decades of the twentieth centuries, the Supreme Court read this language quite narrowly, stressing the importance of states’ following due process in criminal cases. Indeed, the first case interpreting the new amendment (the Slaughterhouse Cases, 16 Wall., 83 U.S., 36, in 1873) read the ‘‘privileges and immunities’’ clause so narrowly as to in effect read it out of the Constitution (at least until the end of the twentieth century).
The majority of the justices in this era equated due process with ‘‘fundamental fairness’’ and with respect to Fourteenth Amendment ‘‘liberty’’ were far more concerned with protecting ‘‘liberty of contract’’ against efforts by state governments to regulate a variety of social and economic problems connected with America’s rapid industrialization. The exception was Justice John Marshall Harlan (I) who, in three criminal procedures cases between 1884 and 1908, argued that the word ‘‘liberty’’ in the amendment was a kind of shorthand reference to the specific protections found in the Bill of Rights. (The most famous modern proponent of this ‘‘total incorporation’’ view was Justice Hugo Black, starting with his dissent in a 1947 case, Adamson v. California, 332 U.S. 46, 1947.)
With respect to the First Amendment, an important watershed was the case of Gitlow v. New York, 268 U.S. 652, in 1925. In this case the defendant was charged with violating that state’s Criminal Anarchy Act of 1902 by publishing several pamphlets that allegedly advocated the overthrow of New York’s government by unlawful means. When Gitlow’s appeal came before the Supreme Court, he argued that the New York law interfered with his freedom of speech, a ‘‘liberty’’ protected by the due process clause of the Fourteenth Amendment against state abridgment.
In his opinion for the Court, Justice Sanford made constitutional history when he stated (in dictum): ‘‘For present purposes we may and do assume that freedom of speech and of the press . . . are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.’’ Thus was freedom of speech ‘‘incorporated’’ into the Fourteenth Amendment. (The Court went on to uphold Gitlow’s conviction, arguing that all constitutional liberties are subject to reasonable restrictions and that there is no constitutional protection for speech advocating criminal activity.)
Two years later, in Fiske v. Kansas, 274 U.S. 380 (1927), the Court confirmed the applicability of freedom of speech to the states, with a more positive outcome for the defendant, holding that a Kansas criminal syndicalism statute as applied to Fiske violated the Constitution. Any lingering doubts about the Court’s new course were further dissipated in two 1931 cases. In Stromberg v. California, 283 U.S. 359 (1931), the Court struck down a California law prohibiting the display of red flags. Chief Justice Charles Evans Hughes favorably cited Gitlow and Fiske and also laid the groundwork for the modern Court’s ‘‘symbolic speech’’ cases, recognizing that certain actions can be so expressive as to constitute protected communication. In Near v. Minnesota, 283 U.S. 697 (1931), the Court overturned a Minnesota law as violative of freedom of the press, reaffirming that a bedrock principle of freedom of speech and the press (now also incorporated into the Fourteenth Amendment) is that governments cannot engage in ‘‘prior restraints.’’
Freedom of assembly was incorporated in DeJonge v. Oregon, 299 U.S. 353 (1937), again involving a state criminal syndicalism law. DeJonge was charged with participation in a political rally organized by the Communist Party. The evidence against DeJonge consisted solely of party literature in his possession; no illegal activity was advocated at the meeting. The Oregon Supreme Court upheld his conviction, but the U.S. Supreme Court reversed. Chief Justice Hughes argued that peaceable assembly is a ‘‘right cognate to those of free speech and free press and is equally fundamental.’’
While no Supreme Court case has directly held that the right to petition is incorporated into the Fourteenth Amendment, the overwhelming implication of the Court’s reasoning in the cases thus far discussed must be that this right is also protected against state government infringement.
In 1934, in Hamilton v. Regents of the University of California, 293 U.S. 245 (1934), Justice Cardozo’s concurring opinion suggests that the Fourteenth Amendment’s due process clause undoubtedly includes certain religious liberties, but neither his nor the Court’s opinion specifically refers to the free exercise clause. Ultimately, very much like Benjamin Gitlow, Hamilton won the battle but lost the war. He argued that his religious conviction entitled him to an exemption from the University of California’s military training requirement, but the Court held that Hamilton was not compelled to attend the university. But if he did, he could be subject to the school’s rules and regulations.
Thus, by the late 1930s, the speech and press and free exercise of religion components of the First Amendment had been incorporated. There were also other cases (largely involving state criminal procedures, including those in which John Marshall Harlan (I) had dissented) in which the Court refused to incorporate some element of the Bill of Rights. The time was ripe for the Court to formulate a standard that would explain these disparate outcomes, and the task fell to Justice Benjamin N. Cardozo. In Palko v. Connecticut, 302 U.S. 319 (1937), Cardozo explained that only those rights that were fundamental were included in Fourteenth Amendment liberty, describing them as ‘‘those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions’’ and ‘‘rooted in the traditions and conscience of our people . . . .’’ For his quintessential illustration, Cardozo mentioned ‘‘freedom of thought and speech,’’ a freedom ‘‘that is the matrix, the indispensable condition, of nearly every other form of freedom.’’
In 1940, building on Hamilton v. Regents, the Court, in Cantwell v. Connecticut, 310 U.S. 296 (1940), actually found in favor of the individual’s claim of an infringement on free exercise. The Court held that Connecticut’s conviction of a Jehovah’s Witness for going door to door distributing religious literature was invalid. While the state may regulate the time, place, and manner of such solicitations, it could not forbid them entirely.
Would the Amendment’s ban on establishment of religion—the only component not yet incorporated— now be added to the list of fundamental liberties applicable to the states? The answer came in a 1947 case, Everson v. Board of Education, 330 U.S. 1 (1947). There, speaking through Justice Black, the Court invoked Thomas Jefferson’s ‘‘wall of separation between Church and State’’ and applied the ban on establishment of religion to state actions. At the same time, the Court decided that the wall had not been breached by the governmental action at issue in this case—New Jersey’s statute authorizing boards of education to reimburse parents, including those whose children attended religious schools, for the cost of bus transportation to and from school. The Court did not see the program as prohibited aid to a specific religious institution, but rather as a general program to help all parents get their children, regardless of religion, to and from their schools.
The First Amendment says nothing about ‘‘freedom of association,’’ but in NAACP v. Alabama, 357 U.S. 449 (1958), the Court said that such a right was so essential to the enjoyment of rights enumerated in the amendment that it is protected against state infringements. The case must be seen, as the Court did, against the background of the struggle for civil rights for African Americans. In an attempt to frustrate the activities of the National Association for the Advancement of Colored People (NAACP) on behalf of civil rights, Alabama ordered the organization to produce a variety of its records, including its membership list. The NAACP claimed that publicizing the names of its members would inevitably lead to various reprisals, including possible violence, against those members. The Supreme Court held that the organization could assert the constitutional rights of its members, including most importantly the right to pursue lawful interests and to freely associate for the purpose of furthering such interests. The fine and contempt judgment against the NAACP by an Alabama trial court were overturned.
PHILIP A. DYNIA
References and Further Reading
Cases and Statutes Cited
See also Establishment Clause Doctrine: Supreme Court Jurisprudence; Free Exercise Clause Doctrine: Supreme Court Jurisprudence; Incorporation Doctrine; Privileges and Immunities (XIV)