The Fourteenth Amendment: Substantive Due Process and Incorporation
The Fourteenth Amendment: Substantive Due Process and Incorporation
The Fourteenth Amendment has had a long and complicated history. In 1866, Congress passed the Fourteenth Amendment to combat the rampant discrimination and horrific violence suffered by Blacks in the former Confederate states. The Fourteenth Amendment (ratified in 1868) was an attempt to protect the rights of citizens from state infringement, especially Black civil rights and equal protection under the law. During the twentieth century, the amendment became part of a controversial attempt by the Court to apply the Bill of Rights to the states and protect those unenumerated rights the Court deemed as fundamental.
After the Civil War, the United States government faced a difficult task. It needed to reconstruct the Union and protect the rights of citizens from state violation, especially civil rights of formerly enslaved Black people in the South. But southern states were instituting discriminatory laws called “Black Codes,” which restricted the rights of Blacks. In response, Congress passed the Civil Rights Act (1866) to protect Black civil rights to own property, make contracts, sue in court, and enjoy equal protection under the law. President Andrew Johnson vetoed the bill, but the Radical Republicans in Congress overturned the veto.
Some Republicans wanted to provide stronger constitutional protections than the Civil Rights Act offered. They worked to pass the Fourteenth Amendment and sent it to the states for ratification in 1866. Section 1 of the amendment provided birthright U.S. citizenship to all born or naturalized in the country. It also banned states from making laws violating the “privileges and immunities” of these citizens, denying citizens the fundamental liberties of “life, liberty, or property” without due process of law, or denying equal protection of the laws. The important questions were which rights were protected under the amendment and who would enforce them.
The rights and liberties that were protected in Section 1 included those listed in the first eight amendments of the Bill of Rights and other basic rights of citizenship, such as making contracts, suing in court, and owning property. There was a serious debate whether political rights and privileges such as suffrage, public education, jury service, or office holding were included. Due process required state legislatures to make laws protecting the civil rights of all and state executive branches to enforce the law equally for all. Section 5 specifically empowered Congress to make laws to enforce the amendment’s provisions against the states.
The authors of the Fourteenth Amendment envisioned that Congress would help to define which rights of “life, liberty, and property” were to be protected under the amendment through deliberative and representative lawmaking to forge a national consensus. The executive branch would help to enforce the laws that Congress made, such as the Civil Rights Acts of 1866 and 1875. The Supreme Court also had an important role to play in deciding cases under the Fourteenth Amendment. In particular, the Court could judge the substance and constitutionality of laws under the Due Process Clause related to protecting “life, liberty, and property.” This differs from the procedural Due Process clause of the Fifth Amendment, which holds that the government must follow the rule of law by adhering to certain processes.
Over time, though, the Court expanded its discretion under the Fourteenth Amendment by taking increasing authority to articulate what rights it might protect. In doing so, it eventually made itself the arbiter of defining fundamental rights rather than Congress.
At first, the Supreme Court decided cases examining the substance of laws enforcing civil rights under the Fourteenth Amendment. In the Slaughterhouse Cases (1873), the Court limited the privileges and immunities protected by the Fourteenth Amendment and therefore seemed to subvert the promise of the amendment. In the Civil Rights Cases (1883), the Court held that the Civil Rights Act of 1875 was unconstitutional because it prohibited private discrimination in public accommodations such as hotels and restaurants.
Soon, the Court began to expand the purview of rights protected under the Due Process Clause. In Lochner v. New York (1905), the Court held that “liberty of contract” was a fundamental right under the Fourteenth Amendment. In the latter half of the twentieth century, the Court asserted the existence of even more rights through the Due Process Clause. For example, it held that there was a “right to privacy” in Griswold v. Connecticut (1965), in a case invalidating a state law banning contraception for married couples. In Roe v. Wade (1973), the Court determined this right to privacy included protecting a right to abortion.
The Court also incorporated the Bill of Rights, which means it applied the Bill of Rights to the states through the Fourteenth Amendment. The original Founding understanding of the Bill of Rights was that it limited the power of the federal government to violate the rights of the people. When originally ratified, the Bill of Rights only applied to the federal government, not to state governments. State governments had their own bills of rights to protect their citizens. This reflected the constitutional principle of federalism between the states and national governments. The Supreme Court endorsed this Founding view that the Bill of Rights applied only to the national government in Barron v. Baltimore (1833).
Under the Due Process Clause of the Fourteenth Amendment, though, the Court came to incorporate the Bill of Rights. During the first half of the twentieth century, the Court incorporated the Bill of Rights selectively in a few cases. For example, it extended the First Amendment right of free speech against state violation in Gitlow v. New York (1925) and freedom of the press in Near v. Minnesota (1931).
These incorporation cases created an understanding of the Court as the protector of individual rights. This understanding became widely accepted during the Warren Court (1953-1969) and after. The Court also expanded the incorporation doctrine. For example, the Court banned school-sponsored prayer and Bible-reading in public schools in Engel v. Vitale (1962) and Abington School District v. Schempp (1963), determining that local schools violated the Establishment Clause of the First Amendment. The Court protected students’ right to free speech in local public schools in Tinker v. Des Moines (1969) when they wore black armbands to school to protest the Vietnam War. The Court protected the rights of the accused in major cases during the 1960s, including Gideon v. Wainwright (1963), stating that states must provide criminal defendants with an attorney when they cannot afford one. In Miranda v. Arizona (1966) the Court decided that police officers must inform a suspect about his or her rights before questioning the accused about a crime. In recent decades, the Court invalidated state laws banning homosexual acts in Lawrence v. Texas (2003) and required states to allow sex-same marriages and recognize same-sex marriage licenses of other states in Obergefell v. Hodges (2015).
The controversy surrounding substantive due process focuses on whether judges should assert or elevate new rights they consider fundamental. Many think the other branches of government are better able to define rights through lawmaking or the amendment process through the deliberative sense of the people and their representatives. State and local governments may also have important roles to play in determining the laws and common values of local communities that support self-governance rather than one uniform, national standard imposed by the judiciary. Others argue the Supreme Court has an important role in protecting unenumerated rights (as stated in the Ninth Amendment) and the privileges and immunities of citizens in the Fourteenth Amendments against oppressive majorities. The main questions surrounding the robust debate will likely continue to be which fundamental rights are protected and who determines what they are.