In the Slaughter-House Cases
(1873) and Civil Rights Cases
(1883), the U.S. Supreme Court made a nakedly political decision to reject its constitutional mandate to evaluate law on a Fourteenth Amendment basis. Today, almost 150 years after the passage of the Fourteenth Amendment
, the Court remains reluctant to fully accept its implications.
Gitlow v. New York (1925)
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Prior to 1925, the Bill of Rights restricted the federal government but was not generally enforced during constitutional review of state law. This changed with Gitlow
, which introduced the incorporation doctrine. As Justice Edward Terry Sanford wrote for the majority:
The precise question presented, and the only question which we can consider under this writ of error, then is, whether the statute, as construed and applied in this case, by the State courts, deprived the defendant of his liberty of expression in violation of the due process clause of the Fourteenth Amendment ...
For present purposes we may and do assume that freedom of speech and of the press-which are protected by the First Amendment from abridgment by Congress-are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States.
This was followed by a fairly aggressive and fairly consistent
application of the First Amendment
to state and local law, and a somewhat less aggressive, less consistent application of other amendments.
Brown v. Board of Education (1954)Brown
is well known as a ruling that challenged racial segregation in public schools, but it was also the ruling that clearly put the U.S. public educational system under the authority of the Fourteenth Amendment's equal protection clause. As Chief Justice Earl Warren wrote for the majority:
Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.
Equal access to public education has still not been realized
, but Brown
was the Court's first serious attempt to address the problem.
Griswold v. Connecticut (1965)
The most controversial effect of the Fourteenth Amendment incorporation doctrine has been the right to privacy
, which has historically been used to protect the reproductive rights of women (and, more recently, the right of consenting adults to have sex without government interference). Justice William O. Douglas defended birth control, and defined the right to privacy, in a bold but constitutionally unassailable ruling. After listing a series of cases that attributed the right to privacy to several different amendments, Douglas suggested that they described different facets of a single implicit right:
The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance ...
Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers 'in any house' in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the 'right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.'
The Fourth and Fifth Amendments were described in Boyd v. United States as protection against all governmental invasions 'of the sanctity of a man's home and the privacies of life.' We recently referred in Mapp v. Ohio to the Fourth Amendment as creating a 'right to privacy, no less important than any other right carefully and particularly reserved to the people.'
We have had many controversies over these penumbral rights of 'privacy and repose' ...These cases bear witness that the right of privacy which presses for recognition here is a legitimate one.
The right to privacy would be applied eight years later in Roe v. Wade
(1973), which legalized abortion in the United States.