The Origins of the Incorporation Doctrine

The Incorporation Doctrine represents one of the most transformative shifts in American constitutional law, fundamentally altering the relationship between the federal government and the states. At its core, the doctrine determines which provisions of the Bill of Rights apply to state governments through the Due Process Clause of the Fourteenth Amendment. Before the twentieth century, the Supreme Court consistently held that the Bill of Rights restricted only the federal government, leaving states free to define their own protections for individual liberties. The seminal case of Barron v. Baltimore (1833) established this narrow view, ruling that the Fifth Amendment’s takings clause did not apply to the states. For nearly a century, that decision stood as settled law, and the federal courts had no authority to review state actions that allegedly violated rights protected by the first ten amendments.

The ratification of the Fourteenth Amendment in 1868, with its Privileges or Immunities Clause, Due Process Clause, and Equal Protection Clause, opened a new constitutional avenue. However, the Supreme Court’s early interpretation of the Fourteenth Amendment in The Slaughter-House Cases (1873) effectively gutted the Privileges or Immunities Clause, limiting its protections to a narrow set of federal rights. For decades, the Court continued to resist the notion that the Bill of Rights applied to the states, emphasizing a dualistic federalism that left states largely autonomous in matters of civil liberties. It was not until the early twentieth century that the Court began to reconsider this stance, and the process of incorporation—piecemeal and selective—began in earnest.

The Role of Dissenting Opinions in Shaping the Doctrine

While majority opinions necessarily carry the force of law, it is often the dissenting opinions that plant the seeds of future legal transformation. In the context of the Incorporation Doctrine, dissents served as intellectual crucibles where judges articulated alternative visions of federalism, due process, and the scope of individual rights. These dissents did not merely register disagreement; they provided rigorous legal analysis that later majorities would adopt, sometimes decades later. The evolution of incorporation is therefore a story not only of what the Court did but also of what dissenting justices argued the Court should have done.

Dissents in incorporation cases frequently challenged the prevailing “selective incorporation” approach, which applied only those Bill of Rights protections deemed “fundamental to a scheme of ordered liberty.” Critics argued that this standard was arbitrary and left too much discretion to judges. Instead, these dissenters advocated for “total incorporation” or “total incorporation plus”—the view that the Fourteenth Amendment made the entire Bill of Rights applicable to the states or even extended additional fundamental rights not enumerated in the first eight amendments. While total incorporation never commanded a majority, its influence is undeniable in the gradual expansion of incorporated rights throughout the mid-twentieth century.

Key Dissenting Opinions and Their Impact

Justice Harlan’s Dissent in Palko v. Connecticut (1937)

The Court’s decision in Palko v. Connecticut is a landmark in the selective incorporation framework, but the dissenting opinion of Justice John Marshall Harlan (the elder) offered a strikingly different vision. In Palko, the majority, speaking through Justice Cardozo, held that the Fifth Amendment’s protection against double jeopardy did not apply to the states because it was not “implicit in the concept of ordered liberty.” The majority’s formulation set a high bar for incorporation: only those rights “so rooted in the traditions and conscience of our people as to be ranked as fundamental” would be binding on the states.

Justice Harlan dissented, arguing that the concept of due process under the Fourteenth Amendment should be understood more broadly. He contended that the protections of the Bill of Rights that are “fundamental” encompass a wider range of liberties than the majority acknowledged. Specifically, Harlan maintained that the prohibition against double jeopardy was a right so essential that it should be protected against state as well as federal infringement. His dissent did not embrace total incorporation—he did not argue that every provision of the Bill of Rights automatically applied to the states—but he rejected the majority’s narrowing test. Harlan’s emphasis on fundamental fairness as the touchstone of due process laid intellectual groundwork that would later be cited in cases expanding incorporation, including Duncan v. Louisiana (1968) and Benton v. Maryland (1969). In the latter case, the Court overruled Palko and incorporated the double jeopardy clause, a direct vindication of Harlan’s dissent.

Justice Black’s Dissent in Adamson v. California (1947)

Perhaps the most forceful and historically significant dissent in the incorporation debate came from Justice Hugo Black in Adamson v. California. In that case, the majority, led by Justice Felix Frankfurter, upheld a California law that allowed a prosecutor to comment on a defendant’s failure to testify at trial. Black argued that this practice violated the Fifth Amendment’s privilege against self-incrimination, which he believed was fully incorporated by the Fourteenth Amendment. Black’s dissent was not merely a disagreement on the facts—it was a comprehensive constitutional treatise advocating for total incorporation.

Justice Black contended that the framers of the Fourteenth Amendment intended to apply the entire Bill of Rights to the states. He supported his argument with an exhaustive historical analysis of the amendment’s drafting history, including the statements of its chief sponsor, Representative John Bingham, and other members of Congress. Black argued that the Privileges or Immunities Clause, if properly interpreted, would have accomplished total incorporation from the start, but that the Court’s misreading in the Slaughter-House Cases had derailed that original design.

Black’s dissent in Adamson did not persuade the majority in 1947, but it had a profound influence on subsequent incorporation jurisprudence. Justice Black continued to advocate for total incorporation in case after case, and his views gained traction as the composition of the Court changed. The Warren Court, which presided from the 1950s through the 1960s, adopted a broadly expansive view of incorporated rights, moving closer to Black’s vision. In Malloy v. Hogan (1964), the Court incorporated the Fifth Amendment privilege against self-incrimination—just as Black had argued in Adamson. Similarly, Griffin v. California (1965) struck down the very practice of commenting on a defendant’s silence that had been at issue in Adamson. Black’s dissent became the law.

Justice Brandeis’s Dissent in Whitney v. California (1927)

Although the Whitney case primarily dealt with free speech under the First Amendment—which had been incorporated in Gitlow v. New York (1925)—Justice Louis Brandeis’s concurring opinion (often treated as a dissent from the majority’s refusal to apply a stricter standard) is a foundational document in incorporation history. Brandeis wrote separately to argue that the Fourteenth Amendment’s Due Process Clause protected more than just procedural rights; it encompassed substantive freedoms like speech and assembly that were essential to democratic self-governance. He famously declared that “those who won our independence believed that the final end of the State was to make men free to develop their faculties” and that “the greatest menace to freedom is an inert people.”

Brandeis’s opinion influenced the Court’s later adoption of the “clear and present danger” test for speech restrictions, a standard that elevated the protection of political expression above state interests. While Brandeis did not explicitly call for total incorporation, his reasoning supported a broad reading of the Fourteenth Amendment that would later be used to incorporate the First Amendment’s clauses with full force against the states. His opinion in Whitney remains a touchstone for understanding the philosophical underpinnings of incorporation.

Justice Douglas’s Dissent in Hurtado v. California (1884)

Though chronologically earlier than the other dissents discussed, the dissent of Justice Stephen Field in Hurtado v. California is often cited as an early precursor to incorporation arguments. In Hurtado, the Court held that the Fifth Amendment’s grand jury indictment requirement did not apply to the states. Justice Field, joined by Justice Joseph Bradley, dissented, arguing that the Fourteenth Amendment’s Due Process Clause incorporated all the protections of the Bill of Rights that relate to the administration of justice. Field’s dissent did not carry the day, but it planted the seed for future incorporation debates. Later justices, notably Harlan and Black, would build on Field’s argument that due process must be defined with reference to the specific guarantees of the Bill of Rights.

The Evolution Through Key Landmark Cases

The dissents in Palko, Adamson, and Whitney did not immediately change the law, but they created a reservoir of legal reasoning that later courts drew upon. The process of incorporation accelerated after the 1920s, with the Court gradually applying one provision of the Bill of Rights after another to the states. The following timeline highlights critical milestones:

  • Gitlow v. New York (1925): The Court incorporated the First Amendment’s free speech clause, holding that states cannot abridge freedom of speech—though the opinion notably refrained from incorporating the entire First Amendment.
  • Near v. Minnesota (1931): The Court incorporated the freedom of the press clause, striking down a state law that allowed prior restraint.
  • Cantwell v. Connecticut (1940): The Court incorporated the free exercise of religion clause.
  • Everson v. Board of Education (1947): The Court incorporated the establishment clause, applying the separation of church and state to the states.
  • Mapp v. Ohio (1961): The Court incorporated the Fourth Amendment’s exclusionary rule, requiring state courts to exclude evidence obtained through illegal searches.
  • Gideon v. Wainwright (1963): The Court incorporated the Sixth Amendment right to counsel in felony cases.
  • Malloy v. Hogan (1964): The Court incorporated the Fifth Amendment privilege against self-incrimination—a direct reversal of the reasoning in Palko and Adamson.
  • Duncan v. Louisiana (1968): The Court incorporated the Sixth Amendment right to trial by jury in serious criminal cases, explicitly adopting the “fundamental fairness” test advocated by Justice Harlan’s dissent in Palko.
  • Benton v. Maryland (1969): The Court incorporated the Fifth Amendment double jeopardy clause, overruling Palko and confirming the vision of Harlan’s dissent.

These cases demonstrate a clear pattern: dissenting opinions that urged a broader view of incorporation eventually became the majority position. The Court moved from a highly selective approach that left many Bill of Rights guarantees unincorporated to a near-total application. Today, almost all provisions of the Bill of Rights that protect individual liberties have been incorporated, with only a few exceptions (such as the Third Amendment’s quartering of soldiers and the Fifth Amendment’s grand jury indictment requirement, which the Court explicitly declined to incorporate in Hurtado).

Modern Implications and Continuing Debates

The incorporation doctrine remains a vibrant area of constitutional law, although the core framework is now largely settled. However, dissenting opinions continue to play a role in shaping its boundaries. For example, in McDonald v. City of Chicago (2010), the Court incorporated the Second Amendment right to keep and bear arms—a decision that drew on both historical analysis and the reasoning of earlier incorporation dissents. The justices in the minority argued that the Second Amendment was not fundamental in the same way as other incorporated rights, echoing the selective incorporation arguments of the Palko era. But the majority, citing the logic of Duncan and Benton, held that the right to self-defense was indeed “deeply rooted in this Nation’s history and tradition.”

The debate over the scope of incorporation also extends to the Eighth Amendment’s prohibition on excessive fines and the Cruel and Unusual Punishments Clause. In Timbs v. Indiana (2019), the Court unanimously incorporated the excessive fines clause, but deeper questions remain about whether the Fourteenth Amendment’s Due Process Clause or the Privileges or Immunities Clause is the proper vehicle for incorporation. Some scholars and judges, including Justice Clarence Thomas, have called for reviving the Privileges or Immunities Clause as the more textually sound basis for incorporation—a view that echoes Justice Black’s dissent in Adamson. If the Court ever adopts that approach, it would be another instance of a dissenting vision reshaping the law.

External resources for further reading include the Cornell Legal Information Institute’s overview of the Incorporation Doctrine, the Oyez project’s summary of Timbs v. Indiana, and the National Constitution Center’s interactive guide to the Fourteenth Amendment. These sources provide additional context on the historical evolution and contemporary significance of incorporation.

Conclusion

The Incorporation Doctrine has evolved from a narrow, state‑centered understanding of the Bill of Rights to a robust framework that protects fundamental liberties against state overreach. This transformation owes a profound debt to dissenting opinions from justices such as Harlan, Black, Brandeis, and Field. These dissents did not merely object to the outcomes of specific cases; they offered coherent alternative theories that gradually won acceptance as legal and societal values evolved. The dissents served as intellectual signposts, guiding the Court toward a more expansive and uniform application of the Bill of Rights. Today, the incorporation doctrine stands as a testament to the power of dissenting voices in American constitutional law—voices that challenge the status quo and, over time, become the majority’s own.