America's Unwritten Constitution: The Precedents and Principles We Live By (28 page)

YET EVEN WHILE HONORING THE
central meaning of these words—“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”—the Warren Court never openly relied on this clause. Instead, the Court accomplished incorporation via the Fourteenth Amendment’s immediately adjoining passage: “nor shall any State deprive any person of life, liberty, or property, without due process of law.”

Textually, this was off-target. As we saw in
Chapter 3
, the relied-upon clause focused on fair legal procedures in lawmaking, law enforcement, and law adjudication. It focused on process, not substance. But many of the rights that the Warren Court (and its predecessor Courts) wielded against states were substantive and not merely procedural rights—a right to religious liberty, an immunity from unreasonable governmental snooping and
grabbing, an entitlement to be paid a fair price for private property taken for public use, and so on. Why did the Warren Court ignore the perfectly apt clause while overworking the less apt clause?

The short answer is precedent. In the first major Fourteenth Amendment litigation to reach the justices, the
Slaughter-House Cases
of 1873, the Court in effect read the privileges-or-immunities clause—section 1’s key clause—out of the amendment, suggesting that the clause merely restated principles of federal supremacy evident in the Philadelphia Constitution’s Article VI and in John Marshall’s basic teachings in
McCulloch v. Maryland.
²⁷

Reconstruction Republicans had aimed to do much, much more than reaffirm
McCulloch
. Bingham and his allies had expressly declared on the floor of Congress that their proposed amendment would overturn another Marshall Court opinion,
Barron v. Baltimore
, which had held that the Bill of Rights limited only the federal government. In
Barron’s
place, Bingham envisioned a reconstructed America in which the basic rights of expression, religion, property, privacy, and fairness that had been promised against the federal government would apply with equal force against errant states.
²⁸

In the decades after
Slaughter-House
, the Court gradually came to appreciate the wisdom of Bingham’s vision, first in an 1897 case obliging states to honor the right of just compensation—the very right that had been at issue in
Barron
—and then in a series of cases in the second quarter of the twentieth century involving free expression, religious liberty, and search-and-seizure issues. In this era, the Court faced a dilemma. Though unwilling to allow flagrant state violations of basic American freedoms, the justices did not want to shout from the rooftops that their predecessors had bungled
Slaughter-House
and a long line of Gilded Age cases that had followed suit. So the justices in this period simply took the path of least precedential resistance, applying a form of substantive due process to strike down the offensive state laws.
²⁹

By the time the Warren Court came along,
Lochner-style
substantive due process was in bad odor. The justices now understood that their
Lochner-
era predecessors had overprotected corporate and property interests in the name of due process. But the Warren Court hesitated to condemn all prior substantive uses of the due-process clause. After all, many well-respected
pre-Warren opinions, such as
Near v. Minnesota
and
West Virginia State Board of Education v. Barnette
(the censorship and flag-salute cases), had used the very same due-process clause to protect important liberty interests. With only a modest amount of tweaking, the Warren Court was able to reconceptualize these proto-incorporation opinions and extend their logic to encompass virtually all the previously unincorporated provisions. The due-process clause provided a ready-made precedential tool to do the work. This tool seemed especially handy, because many of the rights that the Warren Court incorporated did relate to courtroom procedures and litigation fairness—for example, the rights of criminal defendants to confront and subpoena witnesses, to have competent counsel, and to be tried by properly constituted juries in speedy and public proceedings.
³⁰

Even as the Warren Court was reviving and extending substantive due process of a certain sort, the justices were also developing new doctrinal labels and jargon to highlight how their new rulings were qualitatively different from, and infinitely better than, the old
Lochner
line. Just as the
Griswold
and
Katz
Courts stressed “privacy” as distinct from “property,” so the Warren Court’s cases applying the Bill of Rights to states paraded under a new label—“incorporation”—so as to distinguish this project from the property fetishism and antiredistributionism of
Lochner-era
cases.

Yet there was a hefty price to be paid for this doctrinal legerdemain. By not grounding their incorporation case law upon the most apt text, and by declining to broadcast that their predecessors had taken a wrong turn at the very beginning, the Warren Court justices lost a golden opportunity to weld their doctrine to the document and to explain why the leading textualist, historical, and structuralist objections to incorporation were exactly wrong.

WHY DID THE WARREN COURT
deal with incorporation clause by clause, rather than incorporating the Bill of Rights as a whole? In doctrinal jargon, why did the Court follow a “selective incorporation” rather than a “total incorporation” approach? Although the Court failed to offer a compelling answer to this question, its instincts were sound. Some clauses of the Bill of Rights were originally more entwined with states’ rights than others, so it made good analytic sense to address each right separately.

A step-by-step approach also enabled the Court to fashion a workable legal framework—a Court doctrine—that could win the support of a stable and enduring Court majority. To be sure, the alternative approach of total incorporation was historically plausible and textually permissible, but it was not the only defensible way to interpret and implement the Fourteenth Amendment.

Consider the following five possible pathways to incorporation that were open to the Court in the early 1960s:

Pathway One
. Rights in the Bill of Rights were included by definition within the Fourteenth Amendment’s language. The phrase “the privileges or immunities of citizens” was an 1860s term of art referencing the Bill—much as the phrase “the presidents of the United States” in 1866 referenced George Washington through Andrew Johnson.

Pathway Two
. Rights in the Bill of Rights were not included by definition or referenced as such. Nevertheless, these rights in 1868 were widely thought to be included precisely because they were in the Bill. The Fourteenth Amendment encompassed all fundamental rights, and any right listed in the Bill was for that very reason generally viewed as fundamental in the 1860s and should be so viewed in the 1960s.

Pathway Three
. Rights in the Bill of Rights were generally included because the fact that a right was in the Bill was powerful—but rebuttable—evidence of its fundamentality. On this view, the fact that an entitlement was listed in the Bill of Rights made it presumptively, but not automatically, a fundamental right worthy of protection against states.

Pathway Four
. Rights in the Bill of Rights were generally included because virtually every one of them—speech, press, religion, and so on—was understood in 1866 to be fundamental in its own right and would have been so understood even if it had not been textualized as part of the Bill of Rights.

Pathway Five
. Rights in the Bill of Rights were generally included because mid-twentieth-century Americans continued to deem virtually every one of these rights fundamental, as evidenced by the fact that virtually every Bill of Rights provision had counterpart language in modern state constitutions governing most Americans.

Which of these five pathways to incorporation was the one true way?
Perhaps the best practical approach for a justice seeking to craft a majority opinion was to detour around this thorny theoretical question, since all five pathways led to incorporation of all, or virtually all, the rights in the Bill. True, the first two pathways suggested that the Court could have decided incorporation in a single case determining that all the rights in the Bill applied against states. This was the view held by Justice Hugo Black, among others. But this view never commanded five votes on the Court at any given moment. Eventually, Black was content to allow incorporation to proceed one right at a time, in a process that enabled him to collaborate with colleagues who preferred one of the last three pathways, each of which invited more careful—selective—attention to the specific right involved in the case at hand.

The best objection to the Warren Court’s selective incorporation approach was that it was, well, selective—selective, that is, in a seemingly political way. Although the Warren Court incorporated every right it considered, it simply declined to consider three important rights—the right to keep a gun at home, the right to be free from prosecution unless indicted by a grand jury, and the right to have a jury trial in certain civil cases—and thus left them outside the fold, with no good explanation of the differential treatment.

Culturally, the most important of the slighted trio was the Second Amendment’s right to keep and bear arms. Perhaps the Warren Court saw the Second Amendment as a pure states’-rights provision that protected organized state militias and nothing else. If so, the Court may have believed that this amendment, much like the Tenth, did not sensibly incorporate. But the Warren Court justices never agreed to take a case to carefully consider the issue. Had they done so, they would have been obliged to confront evidence that the First Amendment’s establishment clause had likewise originated as a states’-rights provision that, among other things, prevented Congress from disestablishing state churches. If the Second Amendment did not properly incorporate, should the establishment clause also have been disincorporated? If, conversely, incorporating some variant of the establishment clause against states made sense despite its states’-rights roots—and as we shall see shortly, there is indeed a good case to be made for this result—then mightn’t the same be true of Second
Amendment incorporation? By declining to address the Second Amendment, the Warren Court never had to answer these tough questions about its general approach to incorporation and thereby explain why its selective approach was principled across all clauses. Conservative critics may be forgiven for wondering whether the liberal members of the Warren Court were simply more personally sympathetic to antiestablishmentarianism than to gun rights.

At its best, doctrine works itself pure over time, as different judicial generations confront each other in a process that enhances the coherence of case law. So it was with incorporation, as post–Warren Court justices eventually turned to the Second Amendment and decided that it, too, had an individual-rights component applicable against both the federal and state governments. Thus, one of the most telling criticisms against the Court’s incorporation doctrine as it emerged in the 1960s has now become moot.
³¹

Alas, the justices have yet to explain why the remaining two unincorporated rights—the Fifth Amendment right to indictment by grand jury and the Seventh Amendment entitlement to jury trial in civil common-law suits—merit different treatment from all other rights listed in the first eight amendments. As it turns out, there may well be principled, if rather technical, reasons for treating grand juries and civil juries differently from everything else in the Bill of Rights.
^*
The justices, however, have simply declined to hear any cases on the matter. Until the Court either extends the incorporation doctrine to protect the rights to grand juries and civil juries or clearly explains why these two rights are different from all others, the critics of incorporation will continue to have at least one valid point.
³²

Yet even this point is a rather small doctrinal blemish in the grand scheme of things, given the fundamental correctness of the basic concept of incorporation. In this vastly significant quadrant of constitutional law, the doctrine and the document currently cohere remarkably well.

TO APPLY THE BILL OF RIGHTS
against states is one thing; to
correctly
interpret and enforce the meaning of the Bill—whether in incorporation cases involving states or in Bill-of-Rights-proper cases involving the federal government—is something else. Here, too, the Warren Court revolution prompted considerable criticism; and here, too, much of the criticism reflected a flawed understanding of constitutional basics. Consider, for example, two areas covered by the First Amendment: expression and religion.

In 1964, the landmark case
of New York Times v. Sullivan
struck down an Alabama libel law that had socked the
Times
with massive punitive damages for an ad that the newspaper had run criticizing Alabama officialdom. The Court likened Alabama’s law to the Sedition Act of 1798, which had likewise punished printers who had opined against government policy and government policymakers.

Even some scholars who relished
Sullivan’s
result clucked that the justices had ventured far beyond the constitutional text and its original public meaning in order to do justice. According to these scholars, Blackstone’s
Commentaries
had defined “liberty of the press” merely as a promise that government would not deploy licensing systems requiring would-be printers to win official approval before opening up shop. Alabama had not attempted any scheme of press licensing or “prior restraint.” Instead, the state had allowed the
Times
to circulate freely, and had merely responded to what state law saw as the
Times’s
wanton abuse of the liberty that the newspaper had enjoyed.