Incorporation Reconsidered: The Due Process Clause or The Privileges and Immunities Clause?

Today, Americans enjoy a multitude of rights embodied in enlightenment values found throughout the Constitution [1]. For example, in the First Amendment alone, the Constitution promises key freedoms of speech, religion, press, and assembly, among others [2]. However, these rights were not always guaranteed. In fact, at the time of the framing of the Constitution, Anti-federalists insisted on a Bill of Rights in exchange for their support [3]. Crucially, these rights were only initially secured against the federal government, and states had wide discretion to create their own laws in areas that would otherwise be restricted if the Bill of Rights had been applied to the States [4]. For example, South Carolina declared, “The Christian Protestant religion shall be deemed … the established religion of this State,” and Delaware criminalized blasphemy, which would have been clear violations of the First Amendment if it were applied at the state level [5]. Today, these laws are no longer in force as, following the Civil War and subsequent Reconstruction Amendments, the Bill of Rights was applied to the states in a process known as “incorporation” [6]. Recently, incorporation has received new scrutiny not because of its mere existence, but because of the mechanism used to apply the Bill of Rights to the states [7]. Historically, the Supreme Court has utilized the 14th Amendment’s Due Process Clause, which guarantees citizens due process of law, to incorporate the Bill of Rights [8]. Many legal scholars and Justices have raised concerns about how previous precedent perverted the meaning of the Due Process Clause [9]. In fact, scholars and Justices agree: incorporation through the Due Process Clause is incorrect, and the Privileges or Immunities Clause of the 14th Amendment is better suited to incorporate the Bill of Rights against the States [10]. The misapplication of the Due Process Clause has allowed the Court to invent unenumerated rights that are not grounded in the text of the Constitution.

The history and text of the Privileges or Immunities Clause is already structured to allow for incorporation [11]. Representative John Bingham explicitly drafted the 14th Amendment’s Privileges or Immunities Clause to extend the Bill of Rights to the States, going through multiple drafts and debates with colleagues to make his intention clear and perfect his language [12, 13]. In addition to Representative Bingham, other allies spoke in support of incorporation through the Privileges or Immunities Clause, arguing:

“To these Privileges or Immunities, whatever they may be—for they are not and cannot be fully defined in their entire extent and precise nature—to these should be added the personal rights guaranteed and secured by the first eight amendments of the Constitution…The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees” [14].

As reflected in this speech, sponsors generally agreed that the Privileges or Immunities Clause was explicitly written with the aim of enshrining the Bill of Rights as a safeguard against any government, state, or federal, in the union [15]. However, contrary to these intentions, the Supreme Court did not understand the Amendment as such [16].

Even though the Congressional record was clear, the Supreme Court did not agree that the Privileges or Immunities Clause was intended to incorporate the Bill of Rights against the States. Most notably, in 1873, multiple butchers sued the Louisiana state government after it granted a monopoly to a singular slaughterhouse for 25 years [17]. The butchers argued that the law forced them into indentured servitude and that the Privileges or Immunities Clause guaranteed their livelihood [18]. While butchers tried to make the Privileges or Immunities Clause apply against monopolies, like their pigs, this did not fly with the Supreme Court. The Court’s majority opinion argued that the 13th and 14th Amendments were primarily intended to protect African Americans and limited the protections of the Privileges or Immunities Clause to areas controlled by the federal government [19]. The syllabus argues as such, as it reads, “The Privileges or Immunities of citizens of the United States are those which arise out of the nature and essential character of the national government” [20].

Despite refusing to incorporate the Bill of Rights through the Privileges or Immunities Clause, the Supreme Court did make various decisions that incorporated the Bill of Rights through the Due Process Clause of the 14th Amendment [21]. The U.S. Constitution has two due process clauses, one in the 5th Amendment and one in the 14th Amendment [22]. The 14th Amendment’s Due Process clause expresses that “nor shall any state deprive any person of life, liberty, or property, without due process of law” [23]. Rep. John Bingham explained the original intention of this clause, saying that the Due Process Clause would prevent States from casually denying life, liberty, or property to recently freed black people in the South [24]. However, the Supreme Court slowly came to interpret the phrase “due process of law” to refer to two distinct types of due process: procedural and substantive [25]. Procedural due process guarantees that governments will follow laws that do not deprive citizens of their life, liberty, or property [26]. For example, suppose the government charges an individual with a crime and seeks to deprive that individual of liberty by imprisoning them. In that case, the government must carefully follow common law and statutory procedures to ensure that no one is unjustly imprisoned without a fair trial [27]. On the other hand, substantive due process prevents the government from creating laws that are inconsistent with the Constitution’s protections of life, liberty, and property [28]. As privacy is seen as a liberty secured under the Fourth and First Amendments, laws prohibiting the consumption of birth control within one’s own home are unconstitutional [29]. The 14th Amendment’s Due Process clause, the Supreme Court argues, assures citizens’ rights to both procedural and substantive due process, giving the citizenry tools to fight back against government oppression [30]. However, the Supreme Court’s interpretation and creation of substantive due process disregards multiple canons of construction integral to the foundation of American legal theory, English common law [31].

The canons of construction are core principles of law used to interpret statutes and the Constitution [32]. Since the Hammurabi Code, legal theorists and jurists have debated how best to interpret laws written [33]. The modern canons arose from scholars agreeing that legislators are rational and that all language used in legislation is intentional and precise [34]. Over time, the Supreme Court has slowly incorporated canons into its statutory interpretation arsenal [35].

One of these canons is the doctrine against surplusage [36]. The canon of surplusage instructs judges to interpret laws so that no laws “should needlessly be given an interpretation that causes it to duplicate another provision” [37]. Substantive due process violates the canon of surplusage [38]. The Constitution already lists what life, liberty, and property mean through individual amendments [39]. The First Amendment secures freedom of expression, a way in which individuals exercise their liberty [40]. Similarly, the Third and Fourth amendments secure individuals' rights to property free from government unilateral nationalization [41]. With these fundamental rights already in place, and with the Ninth Amendment and Tenth Amendment guaranteeing that other rights be left to the states, the canon of surplusage compels the judiciary to read the 14th Amendment’s Due Process clause as being purely procedural [42].

The writers of the 14th Amendment never intended for the 14th Amendment’s Due Process clause to be construed to guarantee Substantive Due Process [43]. In fact, most Representatives were appalled by Substantive Due Process against the Federal Government in Dred Scott v. Sandford (1857), so why would they propose an Amendment that would create nationwide Substantive Due Process? [44] Scholars and Justices consistently agree: the Bill of Rights should be incorporated under the Privileges or Immunities clause, as the 14th Amendment’s Due Process Clause only allows for procedural due process [45]. Professor Akhil Amar, Sterling Chair recipient for his monumental work in Constitutional law, writes, “Bingham’s Privileges or Immunities Clause simply declared that in post-Civil War America, states would no longer be permitted to abuse these fundamental rights” [46]. Rep. Bingham’s intentions are clear, and Professor Amar further posits that the text of the Due Process Clause is ill-suited to fit the substantive prohibitions against abridging Free Speech or other non-procedural freedoms [47]. Likewise, Justice Clarence Thomas thought the text of the Due Process Clause did not incorporate the Bill of Rights against the States. In McDonald v. City of Chicago (2010), Justice Thomas writes a concurrence where he scathingly writes, “All of this is a legal fiction. The notion that a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words” [48]. The “most casual” English speaker would not construe the 14th Amendment’s Due Process Clause as guaranteeing Substantive Due Process, so should we the Supreme Court? [49] Incorporation of the Bill of Rights through the Due Process is not grounded in the text of the 14th Amendment, the history of the legislative process of the 14th Amendment, or in the English language [50]. The Privileges or Immunities Clause is the proper means of Constitutional Incorporation [51]. The Supreme Court should return Bill of Rights incorporation to the clause that was written for it.

Footnotes

[1] The Federalist Papers, No. 10 (Madison) (1787).
[2] U.S. Const. amend. I.
[3] The Federalist Papers, No. 84 (Hamilton).
[4] Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833).
[5] South Carolina Const. of 1778, art. XXXVIII; Delaware Laws 1740, c. 13 (“Against Blasphemy”).
[6] Gitlow v. New York, 268 U.S. 652 (1925).
[7] McDonald v. City of Chicago, 561 U.S. 742 (2010).
[8] Dobbs v. Jackson Women’s Health Org., 597 U.S. ___ (2022) (Thomas, J., concurring).
[9] Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (Yale Univ. Press 1998).
[10] Cong. Globe, 39th Cong., 1st Sess. 103 (1866).
[11] Id. at 1291 (statement of Rep. Bingham).
[12] Eric Foner, Reconstruction : America’s Unfinished Revolution, 1863-1877 (New York : Harper & Row, 1988).
[13] Cong. Globe, 39th Cong., 1st Sess. 2765 (statement of Sen. Howard).
[14] Id.
[15] Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873).
[16] Id.
[17] Id. at 59–60.
[18] Id. at 66–67.
[19] Id. syllabus.
[20] Id. at 75–76.
[21] Gitlow, 268 U.S. 652; Mapp v. Ohio, 367 U.S. 643 (1961).
[22] U.S. Const. amends. V, XIV.
[23] U.S. Const. amend. XIV, §1.
[24] Cong. Globe, 39th Cong., 1st Sess. 1088 (1866).
[25] Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272 (1856).
[26] Id.
[27] Goldberg v. Kelly, 397 U.S. 254 (1970).
[28] Lochner v. New York, 198 U.S. 45 (1905).
[29] Griswold v. Connecticut, 381 U.S. 479 (1965).
[30] Roe v. Wade, 410 U.S. 113 (1973).
[31] Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (Thomson/West, 2012).
[32] Id.
[33] Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Harvard University Press, 1983).
[34] Reading Law, supra note 31.
[35] Zadvydas v. Davis, 533 U.S. 678, 689 (2001).
[36] United States v. Menasche, 348 U.S. 528 (1955).
[37] Id.
[38] Dobbs, 597 U.S. ___ (2022), supra note 8 (Thomas, J., concurring).
[39] U.S. Const. amends. I–X.
[40] Id., amend. I.
[41] Id., amends. III–IV.
[42] Id., amends. IX–X.
[43] Cong. Globe, 39th Cong., 1st Sess. 1034–35 (Bingham debates).
[44] Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).
[45] Akhil Reed Amar, America’s Constitution: A Biography (Random House, 2005).
[46] Id. at 389.
[47] Id. at 392–393.
[48] McDonald v. City of Chicago, 561 U.S. 806 (2010) (Thomas, J., concurring).
[49] Id.
[50] Dobbs, 597 U.S. ___ (2022), supra note 8 (Thomas, J., concurring).
[51] Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873); McDonald, 561 U.S. 742, supra note 48.