ignorance

[Bryan Wildenthal]

I appreciate Kurt Lash's very informative comments, and I agree with and
stand corrected by his very proper precision about when the Court was
incorporating textual clauses of the First Amendment, vs. merely free speech
principles in a generic "liberty" sense via the Due Process Clause.  I was,
of course, speaking of Gitlow, Stromberg, Near etc as "incorporationist" in
the rather loose way we are often accustomed to.  Chicago B&Q v Chicago
(1897) (Harlan, J) was of course the first Supreme Court decision to
"incorporate" a liberty specified in the Bill of Rights, namely the takings
clause, but only in the indirect way (in Chicago B&Q totally avoiding
textual reliance on the Fifth Amendment clause) that Near, Stromberg did, as
Kurt correctly describes.  Chicago B&Q, Near, Stromberg, etc, are still
important "incorporation" milestones in their own right and in their own
(unacknowledged, indirect, or inexplicit) way.

And, I of course agree with Earl Maltz about Slaughter-House as an early
example of a "textualist" incorporation approach -- in both the
Slaughter-House majority and dissenting opinions, in my view.  Shameless
plug: see Wildenthal, The Lost Compromise: Reassessing the Early
Understanding in Court and Congress on Incorporation of the Bill of Rights
in the Fourteenth Amendment, 61 Ohio St LJ 1051 (2000), and The Road to
Twining: Reassessing the Disincorporation of the Bill of Rights, 61 Ohio St
LJ 1457 (2000) -- which cite, incidentally, Professor Maltz's provocative
article The Concept of Incorporation, 33 U Rich L Rev 525 (1999).

Bryan Wildenthal, Thomas Jefferson School of Law

> -----Original Message-----
> From: Kurt Lash [mailto:Kurt.Lash at LLS.EDU]
> Sent: Saturday, March 31, 2001 9:09 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: ignorance
>
>
> Earl Maltz originally asked when the free speech and free exercise
> "clauses" first were relied upon to strike down government
> action.  Earl's
> question, perhaps unintentionally, raises the issue of when
> exactly the
> CLAUSES of the First Amendment--as opposed to the Lochner Court's
> enforcement of the common law right of free speech--were
> applied against
> the states.
> Bryan Wildenthal believes that "The first Supreme Court
> decision to strike
> down *state* government action on any clearly stated free
> speech grounds
> (and to hold the First incorporated into the 14th, which Gitlow merely
> "assumed") was Stromberg v California, 283 us 359, 368 (1931).  Near v
> Minnesota, 283 us 697, 707 (1931) was first to so hold re:
> the free press
> clause.  I think Stromberg and Near are the best cites."
> Actually, Gitlow said nothing whatsoever about incorporation.
>  It merely
> reiterated the Court's embrace of common law free speech.
> The same is true
> for Stromberg and Near.  While acknowledging that the First
> Amendment also
> protects freedom of speech and press, the Court throughout
> this period was
> quite careful to distinguish its enforcement of common law
> rights of speech
> and press from the mere fact of textual inclusion in the
> First Amendment.
> If speech and press (and religion) were to be protected against state
> action, it was not due to their inclusion in the text of the
> Constitution,
> but only because of their standing as "fundamental liberties"
> protected
> under the Due Process Clause--like the fundamental liberty of
> contract.
> The Court did not articulate a theory of textual
> incorporation until after
> the New Deal Revolution of 1937.  Palko (1937) was the first
> case to speak
> of the "absorption" of the Bill of Rights into the 14th
> Amendment.  Jones
> v. Opelika (1942) was probably the first case to speak of applying the
> texts of the First Amendment (as opposed to common law
> rights) against the
> states ("Careful as we may and should be to protect the freedoms
> safeguarded by the Bill of Rights . . .").  The first case to clearly
> strike down a state law on the basis of a First Amendment
> text I believe
> was Murdock (1943)("It is contended, however, that the fact that the
> license tax can suppress or control this activity is
> unimportant if it does
> not do so. But that is to disregard the nature of this tax.
> It is a license
> tax--a flat tax imposed on the exercise of a privilege
> granted by the Bill
> of Rights.").
> The clearest articulation of textual incorporation, of course
> is Barnette:
> "In weighing arguments of the parties it is important to distinguish
> between the due process clause of the Fourteenth Amendment as
> an instrument
> for transmitting the principles of the First Amendment and
> those cases in
> which it is applied for its own sake."
> Prior to 1937, the free speech and free exercise clauses did
> no work--even
> in cases where the Court protected speech and religion.  It
> was not until
> the New Deal Revolution and birth of modern incorporation
> doctrine that the
> Court actually spoke of enforcing the clauses of the Bill of
> Rights against
> the states.  In an article I am preparing, I argue that textualist
> incorporation doctrine was a critical (and currently underappreciated)
> aspect of the New Deal Revolution.
> If Earl is looking for enforcement of the "clauses," I would nominate
> Murdock and Barnette.
> Kurt Lash
> Loyola Law School (Los Angeles)
> kurt.lash at lls.edu
>