How The 14th Amendment Applies The Bill Of Rights To States

The Fourteenth Amendment promises a baseline of freedom, but the Supreme Court built that promise through a long series of workarounds. We start with incorporation: how protections in the first eight amendments of the Bill of Rights come to bind state governments, not just the federal government. Along the way, we revisit what Reconstruction lawmakers were trying to fix, why a national “floor of rights” mattered, and how early decisions like United States v. Cruikshank helped stall incorporation for decades.

From there, we get into the part that makes lawyers argue and students groan: selective incorporation and substantive due process. We explain how the Court first used the Due Process Clause to protect “liberty of contract” during the Lochner era, then later pivoted to using the same clause to selectively apply speech, criminal procedure, and other civil liberties against the states. We also talk about Justice Hugo Black’s blunt critique and why the Court still resists the cleaner logic of total incorporation, even when modern cases like McDonald and Timbs keep pushing the doctrine in that direction.

We close by connecting incorporation to two bigger battlegrounds: unenumerated rights and equal protection. We unpack how privacy arguments show up in Griswold and Roe, what Dobbs changes, and why federalism questions can get tangled with individual rights claims. Then we shift to the Equal Protection Clause, where “all laws classify” forces courts to draw lines between reasonable policy and arbitrary discrimination, through cases like Plessy, Brown, Korematsu, and Loving.

If you care about civil rights, civil liberties, and how the Constitution applies in real life, subscribe, share this with a friend, and leave a review so more listeners can find the series.

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Transcript

Welcome Back And Big Goal

SPEAKER_00 0:48

Welcome back to Civics in Year. This is our part two for the 14th Amendment because the 14th Amendment needs definitely more than one episode. If you've not listened to the previous episode, we kind of go into the, you know, looking at the history of it and what it was trying to fix at the time. But Dr. Beinberg is back with us. And today we're kind of talking about incorporation. And I want to start off by James Madison had originally had an incorporation amendment with his, you know, original, you know, draft of the Bill of Rights, and it just didn't make it through. So I feel bad for James Madison because he never got to see or know this kind of passage of this little piece.

What Incorporation Actually Means

SPEAKER_01 1:28

But I really think there's he was trying, I generally really like James Madison, and I very much approve of Philip butt coming. Well, the you know, because in the we talked about this before, but in that first Congress, many folks like, all right, well, let's just get to building the government. He said, No, we promised them a bill of rights. We gotta do this. We are honor bound to do this. Let's collect all their materials. And so I appreciate very much that Madison was trying to faithfully represent the ratifying conventions. And I also am very much on board with the idea of a core set of rights being the universally applied throughout the union, but he was trying to steal a base there and basically smuggling through something that was his own hobby horse when he was trying to say we have to do this because the people have spoken. So he's right on the merits, he's right on the Bill of Rights. I I do think he was trying to kind of sneak in a little bit by wanting to incorporate again. It wasn't the whole set, it was mostly like the First Amendment and jury trial.

SPEAKER_00 2:33

But so when we talk about incorporation then, right? And the last episode, we kind of talked a little bit about it, but I want to talk more about what is incorporation when we're talking about the 14th Amendment.

Cruikshank And The Long Detour

SPEAKER_01 2:47

Yeah. So in section one, and I'm not going to be more specific than that originally here, there is a there is seemingly language that people have pointed to later to say that the first eight amendments of the Bill of Rights are applied to the states. Nine and 10 are both federalism provisions about the difference between federal and state at the historically, for weird reasons, we'll talk about they pointed to the due process clause. I think scholars more recently, and I think more sensibly have said that no, it's probably privileges and immunities. But if you look at the debates they're having, many of them say, yep, what the purpose of this is to make sure that there is a floor of rights that are guaranteed to folks in the states with an additional federal redundant backstop. Because it's worth noting, most of these rights in the first eight amendments, in some formulation or another, are in the state's own constitutions. This isn't like suddenly saying, aha, you have to have free speech, this crazy idea that you've never heard of before. Like, no, it's in their state constitutions. Some of the southern ones have uh, you know, like a comma, except for white people kinds of language in there. So like their arms provisions often will have white, you know, explicit white supremacist language. And again, like all of the exact protocols of like when you have to have a jury trial for dollar amounts, okay. But the basic core of like you have to have due process, you have to have jury trials, this is already in the this is already in the state constitutions. And so the argument is look, Article 1, Section 10 is a list of guarantees in the very original constitution. The states can't screw around with the contract after it exists. And so the argument is we're not saying every right in the whole world, but what's in the Bill of Rights core floor should be independently enforceable by the feds against the states. And so their argument is this is not a major violation or modification of federalism. It's a guarantee that basically the states already are putting forward saying, and we'll additionally reinforce them. Oversimplifying a little bit, because again, some of the states don't have an arms piece, some of them don't have exactly a different form, you know, some of them actually do have speech relatively late in their in their text. But basically, the original idea of incorporation is the first eight amendments to the Bill of Rights apply to the states. That the Supreme Court in 1876, everybody blames this case called the Slaughterhouse Cases. You've probably heard people complaining about that. The Slaughterhouse Cases is not the bad guy. It's a case five years later, or a few years later, called the USV Crookshank, where the Supreme Court says Bill of Rights isn't supposed to apply to the states, only to the federal government. And then he cites a Supreme Court case from 1833, which is a good case to cite, and it was accurate at the time, but a little thing called the 14th Amendment has happened between 1833 and 1876. And so Cruikshank says Bill of Rights doesn't apply to the states. And so incorporation seemingly gets foreclosed for quite a while until it gets brought back by a really ugly, messy process, which we can decide how how much we want to torture our listeners in going through that.

SPEAKER_00 5:57

But so I mean, the answer for me is let's torture them because I think that it's it's an interesting theme because the 14th Amendment didn't just say, okay, everything applies, it's full incorporation. It it comes very like selectively through Supreme Court cases. I mean, that really just it was isn't the first one on freedom of speech.

Substantive Due Process And Lochner

SPEAKER_01 6:23

It depends on if you want to squint and count an eminent domain case from the 1890s. So I I generally think that GitLoan 25 is the is the one that you're alluding to, is the but there are there are some historians that point earlier. So you can't even get to incorporation without like a little side quest to this idea of substantive due process and liberty of contract. Okay. Which basically in the 1870s, if you read like the the Crookshank case, you read the slaughterhouse cases, the concurrences and dissents, they say some of them say just the Bill of Rights. A few of them, particularly those folks who are associated with the Lincoln appointee Stephen Field, who is uh on the court for a long, long time. Field is very much a hardened libertarian, and he has the view that basically the Civil War creates both political and economic liberty, and that effectively part of being freed from slavery is now that you are a part of this robust market economy, and so all citizens have to have very sort of robust, basically free market assumptions. And this is why, again, the Civil Rights Act of 1866 has all these contract provisions. I read it as effectively just saying it has to be sort of neutral across lines, but doesn't say you have to have those necessarily. But Field and others increasingly say that they there are fundamental rights, even if they are not enumerated in the constitution of contract and property, that no legitimate government can interfere with. And they eventually point to the due process clause, which is to my mind an odd place to point to it because due process literally is about process. It's explicitly says, in fact, you may be deprived of life, of liberty and property with due process. Nonetheless, Field and his crew quickly point to the due process clause. And though they create this doctrine that scholars later call substantive due process, they call it liberty of contract at the time, that there is some level of presumptive free market regulation, free market policies that have to be guaranteed with the fundamentals of American citizenship. And so, again, how widely this gets used, I think gets exaggerated by Theodore Roosevelt and others later. But they are striking down minimum wage laws, for example. They strike down in a couple cases, or one case, the Lochner case, maximum hours, although the fact pattern on that one is so weird. They strike down some policies about basically trying to protect unions. And so you have this weird universe between like 1880, you know, 1890 and 1925, in which the Supreme Court has said, with John Harlan in the 1880s or in the 1890s, 1900s, is the only one saying, Yeah, the Bill of Rights is applied. The Bill of Rights isn't applied to the states, but this economic liberty is. And this seems kind of inverted on textual grounds. And so, as you alluded to, the Supreme Court doesn't say, ah, oops, we made a mistake. We ignored incorporating the Bill of Rights. They instead say, what rights are also fundamental, like free market liberties? And so they start picking out the pieces of the Bill of Rights, and they say, we're not incorporating it because it's in the Bill of Rights, we're incorporating it because it's super fundamental and important. And the courts spell out these sort of criteria for deciding what right in the Bill of Rights is fundamental enough that it applies, and what right isn't fundamental enough that it applies. And very famously in the 1940s, Justice Hugo Black says, I don't like this, where the court gets to say what's important and what's not important. Our job is to enforce the law. He is a critic of that liberty of contract doctrine. He says, look, this is making up rights that aren't in the Constitution. We don't have a right to do that. We also don't have a right to ignore rights that are in the Constitution. Let's do this in a nice and clean way. If it's in the Constitution and the Bill of Rights, we will enforce it. If it's not there or reasonably derived from it, we won't. So he wants to make very much a textualist critique. The Supreme Court says, no, no, no, no, no, we're not going to do that. And bizarrely, instead, for you know, decades afterward, they will continue to say, we're not incorporating it because it's in the Bill of Rights, but because it's fundamental, such that fundamentally you get to the point where almost all of the rights are incorporated, but with this backwards doctrine. And literally today, 10 years ago or 15 years ago, so the Supreme Court said, Is the Second Amendment applied against the states? And the majority of the Supreme Court says it is because it's super fundamental and important, because it's in a whole bunch of state constitutions and it's in Blackstone and it's in the 1860s debates. And Clarence Thomas wants to basically say, look, Hugo Black was right. It's in there, so we apply it. It's not in there, we don't apply it. But he he writes this in his own concurrence saying, We're going to use privileges and immunities for total incorporation. None of this weird selective stuff. And the majority basically says, look, we've been doing it wrong for 100 years. We'll just keep doing it wrong, and eventually it'll sort of look in. And when they more recently after that, it was Tim's, I think in 2018, it was about excessive punishment. And again, they don't do this, they do the same. Like we're just doing this through the due process clause, even though it's probably wrong in a stupid way to do it. So that today, functionally, functionally, almost all of the Bill of Rights is incorporated. They don't have the$20 jury piece, and there's a couple of other minor pieces, but basically it's almost all been applied. So we are functionally in a Hugo Black, Clarence Thomas world of we enforce it because it's in the text of the Constitution, but theoretically, doctrinally, we are still in the we're only picking out the important pieces and enforcing those. And then in the 1930s, and then backing up, Hugo Black in the 1930s gets the Supreme Court to say, you know what, we're not doing liberty of contract anymore. That's not a fundamental right. We're only going to do stuff that's in the text. We might not do everything in the text, but we're only doing stuff that's in the text, which is partly why Hugo Black gets so furious in the 1960s when the Supreme Court uses substantive due process, due process reasoning again to say, ah, there is a right to privacy, and then from there a right to abortion. That Black is furious because he thinks that that's doing the same thing they were doing in the 1930s, instead of he wants to have a sort of textual in or out kind of framework. The Supreme Court obviously has foreclosed the abortion case and the framework in Dobbs. They have not officially gone back through and said we're never doing an unenumerated fundamental right again. But the framework in there basically says you have to show us it's really, really deeply rooted in history, which is my sort of cynical take is them saying we're not going to go close other stuff off, but stop sending us these cases. So I think functionally, substantive due process is basically closed, and functionally incorporation has been reached, but there's still some wiggle room because courts don't like screwing with screwing with doctrine more than they have to.

SPEAKER_00 13:46

I'm glad that you brought up the Tim's case and it's T-I-M-B-S uh versus Indiana. I will say, if you are a teacher listening to this, my students loved that case because really it's talking about a Land Rover and whether or not like that's excessive. It's a very interesting case, and I think that kids really like it. You know, when you talk about incorporation, like the Third Amendment's not incorporated, right?

SPEAKER_01 14:11

We haven't had a test case to get it incorporated.

SPEAKER_00 14:16

And then grand jury indictment, I don't believe, has been incorporated.

SPEAKER_01 14:22

Um I think grand jury has. No, no, you're right, you're right, no, you're right, you're right, you're right, you're right. You can still buy information. That's right.

SPEAKER_00 14:31

Yeah, that's a part of the Fifth Amendment, right? Other pieces have. And then I don't know that the Seventh Amendment has like a civil jury trial. So it's it's an interesting like thought experiment, you know, to go through and and to look at these. And Dr. Beinberg, you brought up a couple of Second Amendment cases. We do have podcast episodes on those to kind of help you out. But it is it's an interesting thing to just go back and look at, you know, the constitutional discussion of, you know, just selectively incorporating or just saying everything is incorporated. And when we talk about again incorporation, we're talking about the first through the eighth amendments, because we've done, you know, podcast episodes and talked plenty about uh the ninth and tenth amendment.

SPEAKER_01 15:17

But it also has the side piece of total plus, or you know, are you doing other and unenumerated rights or are you not doing those rights? Because there's there's there's a piece that sort of dovetails with incorporation, but it either expands or contracts it depending on who you're looking at on that too.

SPEAKER_00 15:34

So can I ask a question then? Because you brought up abortion and that's uh unenumerated, right? Because it it supposes privacy and whatever else. I'm trying to think of how to phrase this and I can cut it if we need to. Because medical privacy and abortion is not listed in the first eight amendments. Like there is not that. So when we talk about unenumerated, you know, rights being incorporated, that's a lot of the debate over abortion is who has the power to make that decision? Is it the federal government? Is it the state government? Is it kind of that back and forth?

Hugo Black Versus Selective Incorporation

Modern Cases And Missing Amendments

SPEAKER_01 16:15

Well, I mean, so that's a federalism piece, though, because that's a that's a question. Because abort because like Roe didn't say the states can't do this, but the feds can, or vice versa, right? It was the civil liberties, it was an individual rights sort of a claim versus a powers claim. And you know, this we when we talked about the 10th Amendment, you know, I mentioned that the federal effort to regulate abortion with the Commerce Clause, they didn't make a federalism claim. They just tried to basically say there was individual liberties claims on that. And it's worth noting, too, like even going back to like the Griswold case on privacy, several of the one of the dissenting justices said, look, there's a better way to do this, which is this is a Fourth Amendment case, because this will never be enforceable against private people in their own home if you just do the Fourth Amendment sort of normally understood, right? You don't need to expand to the sort of broader understanding of privacy, which is just like it's in your house, the you know, the this this is unenforceable. So it's worth noting that even then, it's not like saying, uh, there's no way in which you know that there's ever going to be a civil liberties protection that's that's relevant. So I mean, and obviously there's always gonna be you know marginal cases of even if it's a First Amendment case, does some sort of secondary consideration is a campaign contribution speech or not? Is a campaign expenditure speech or not? Is you know, is if you know the football coach preying on the field while he's in play, is that free exercise of the kind that's understood by them, or or is it referred like so you know, there are always gonna be cases where you're trying to figure out we even what's the contour of of the rights. But uh, you know, other than but like the the you know, Roe doesn't try to say this is the Fourth Amendment broadly understood. This like it tries to say there is an underlying right, and they explicitly say we're not even gonna say whether it's from the Ninth Amendment or the 14th, like they're agnostic on that, which is they're not even trying to sort of connect it to one of the others, which is what one of the things the dissents complain about, which is like this isn't even in the most expansive understanding of incorporation. Griswold, the privacy case on contraception, the majority opinion does sort of do that. Douglas wants to say there's kind of a First Amendment floating around, there's kind of a Fourth Amendment floating around, there's all these, this is where the phrase penumbras and emanations comes from. Because he wants to do like a really, really, really expansive, like it's kind of from the Bill of Rights, but then the concurrences say, like, no, we don't need to do this thing. We're just gonna call it a fundamental right, like they did in the 1920s. And amazingly, and this is this is actually what causes Hugo Black to lose his mind. They actually go back and they cite those liberty of contract cases in that, which Douglas had been on the record decrying for years, writing opinions saying these are awful. And so Black is Black is furious that more or less that Douglas is just being such a naked hypocrite of these cases are evil, but like we've overturned them, but now we've unoverturned them for this different thing that I like. But you know, this is the this is why you can go through days on just trying to figure out then we've figured out sort of what's in you know selective versus total, but also are we doing fundamental or not? And which is why the courts I think have wanted to move away from that for a long time. There is other also one other piece that we haven't really talked about, which connects to this, which is the equal protection piece, which is where some others have suggested, for example, you might find a right to uh to abortion, for example. But you know, the equal protection clause is probably the most if even the incorporation is not nearly as convoluted as equal protection law. Because you know, people want to say, well, 14th Amendment says laws have to be equal. Well, what does that mean? Because all laws classify, right? A law classifying an employer and employee is a classification, right? A law classifying a minor versus an adult is a classification. A law classifying you can spell out whatever it is, right? A veteran versus a non-veteran, a retire, all laws classify. And so the question that the 14th Amendment basically gets to deal with is what's the difference between reasonable classifications that are an actual, like relevant difference, and those which are arbitrary and like basically pointless, other than some kind of discrimination. And even refraining like that is like, well, that seems like it's endlessly malleable. But that's largely the way that the 14th Amendment doctrine has evolved is people say, you know, this law that seemingly, you know, we didn't really think that it was arbitrary, and now we think that it is. So, for example, this is where, you know, the early 1870s cases, there are minor versus Hapersat and others, there are women that say, like, the fact that I can't practice law as a woman, that seems arbitrary. The question is like, can I do the bar exam? Or have I, you know, you know, have I read law with somebody? And they say, look, it's not arbitrary because like gender is real and this is different. And so they sort of brush that aside for a while. And then later on in the 60s, you know, basically as the ERA is running, first in the 20s, they've tried in the 20s and then you know, in the the 60s and 70s, the Supreme Court says, we are not gonna say, for example, all laws classifying based on sex are unconstitutional, because they say, like, there are places that like sex is a real thing that matters, and so therefore it's not all arbitrary. But like whether you can be the executor of your father's estate, like that that's completely arbitrary. And so the court, and so students get frustrated by this too, but you know, they have all these, and I'll spare the I will spare your listeners all the convoluted discussions of the tiers of scrutiny and all of intermediate scrutiny and all that. But the basic framework that the court has tried to make is to say laws that classify based on something we think is almost never relevant, like race, right? Presumptively unconstitutional. Laws that classify based on things that might be relevant in some cases, but you need to be skeptical, it's not just stereotyping, that's basically sex. And then other laws that classify again based on employer versus employee, that's either within the state's police powers or you know, or the federal government if it has an enumerated power. Issues related to sexuality have sort of shifted up to so originally, you know, they argued it is rational to distinguish between marriages between a man and A woman and two men, for example, because they would say classifying based on that is rational to what we think marriage is. Later on, the Supreme Court says, well, no, we increasingly don't think marriage is as tightly connected to, say, child rearing, for example. And so therefore, what had not been an arbitrary classification looks more like one. And the Supreme Court uses substantivity process in a burger fell, but the lower courts are using more or less normal equal protection reasoning. And that, but that's basically how it is. And so stuff kind of has has sometimes moved in the tiers. So that, for example, even classifications based on sex, officially they use a tier of scrutiny, but functionally, in some cases, it looks closer to a race, you know, skepticism based on race. So, but that's the basic, basic framework that the courts try to use is they say, is this classification basically arbitrary and pointlessly discriminatory, or is it recognizing there's some actual sort of good government policy justification for this classification?

SPEAKER_00 23:49

Really, those foundational cases are Plessy versus Ferguson, the you know separate but equal, and then Brown versus Board of Education, correct? Like looking at that equal protection. Because with Brown, the out of the Supreme Court, it says it's inherently unequal. Like there is no reason to do this. That's right.

Privacy Abortion And Federalism Confusion

SPEAKER_01 24:10

Yeah. So Plessy Plessy is a weird case, and we'll talk more about it in a podcast. Yeah. The majority opinion, particularly in Plessy, is just weird. But Brown is basically says, you know, these classific uh weirdly, horrifyingly, do you know the case that comes up with the idea that racial classifications are presumptively unconstitutional? Oh god, no, I don't. Yeah. It's koromatsu. It's koromatsu. They have this aside at the beginning where they say, laws classifying based on on race are presumptively unconstitutional and a very, very, very bad idea. But in this case, we'll allow it, right? And so this is why I this is partly why I actually really loathe the strict scrutiny framework because it basically concedes like, yes, you are breaking a right, but if it's really important, we'll let you do it. And that comes from Koromatsu saying, yes, racial classifications are probably bad, almost always bad, but not in this case, which the dissents just ream them for. And they say Robert Jackson's dissent in Koromatsu is one of my favorite opinions, which is basically like he even says at one point, we shouldn't have taken the case, we should have just let the feds run in tournament, because as bad as that is, we were never gonna stop it during a war. But we've left this loaded gun lying around where you can say, we can classify based on race if it's really important right now. And he says this is this is gonna get and eventually that doctrine gets tortured out into you have strict scrutiny on other case laws where the Supreme Court has said, we can violate, or where several justices, I should say, on the Supreme Court in the Smith case in the dissent say, We can I guess it's the concurrence, we can violate an enumerated religious liberty light if we think it's important because and what if we've moved from the Japanese are gonna beat us in World War II to if kids use drugs, right? So like once you've created that loaded gun that is effectively a we can break the law if it's super important, then you can then that's better. So yeah, Koramatsu is the one that originally comes up with the strict scrutiny framework, and then they develop it a little later. But yeah, Brown basically says, like, it's presumptively unconstitutional, and then there's a few cases afterward where they say classifications based on race are just Loving v. Virginia has a similar piece where the they say, look, this is seemingly a very arbitrary, purposeless classification. And then, you know, the court sort of relaxes that a little bit. They use the strict scrutiny framework in the affirmative action cases, like we talked about, and then they close it back off in SSFA case where they say, we're gonna use the Brown framework rather than the sort of backy carve out to say we're gonna allow it in this case because it's so important to allow academic diversity, for example. So so strict scrutiny is in theory, as they say, you know, strict in theory, fatal in fact. It seemingly it's looking like it's closer to fatal in fact and enforcing that. But yeah, the the the mid-20th century case law has all sorts of wild, a little wild forays like that.

SPEAKER_00 27:15

It's just interesting. And for our listeners, loving versus Virginia is about interracial marriages. I know that you brought up a case, read versus read about you know who can be the executor of in the state. This is, and listeners, I am trying really hard to keep this short because this is like the case law that I love because it is so complicated. And, you know, if you are not familiar with koromatsu, Fred Koramatsu took the United States to court because he was a US citizen and turned during World War II. Um, and he lost that case. Yep. And this is, you know, when you're talking about this loaded gun, that's what it is. And I don't think it comes up again until Trump versus Hawaii. And the Supreme Court doesn't overturn Koromatsu, but they just say that shouldn't be a thing.

SPEAKER_01 27:59

Well, they can't legally overturn it strictly because it's not, it's about a different thing. So they call it, they call it precedential value into question, which is fair enough. It's not being cited approvingly, but there is a why there is a weird period where they're citing laws that are presumptively unconstitutional. See koromatsu. You're like, why are you why do you have this in here? Oh my god. They eventually they eventually quit citing koromatsu and cite the other cases that were citing koromatsu, but it is.

Equal Protection And The Loaded Gun

SPEAKER_00 28:29

And now I'm like looking at our list for the for the rest of the time, making sure that we have some of these cases because it is, you know, we talk about the 14th Amendment, we talk about incorporation, substantive due process, equal protection. It is, especially in the 20th century, there's so many cases that look at this, you know. And I again, I think the most famous one is Brown versus Board of Education, but there are so many others. So, listeners, stay tuned. There will definitely be more on this. And I think that I am going to convince slash kindly bully Professor Beinberg into doing these different levels of scrutiny when we're evaluating laws, because I do know that it shows up on a couple A B tests. So, Dr. Beienberg, thank you so much.