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Justice's remarks prompt a review of First Amendment interpretation

Tony Mauro
Special to the First Amendment Center

05.26.98

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Justice Antonin...
Justice Antonin Scalia

At one time or another, everyone who has studied the First Amendment has probably puzzled over the first four words: "Congress shall make no law... ."

Why, if the First Amendment applies to all government action, do its words seem to suggest otherwise? If it meant to prohibit all government restrictions on free speech, press, religion, assembly and petition, why does the First Amendment just direct its commands toward Congress?

The short answer is in two parts. First, until this century, the Supreme Court pretty much agreed that the First Amendment, along with the rest of the Bill of Rights, restricted only Congress and the actions of the federal government and did not apply to the states. Second, the only reason the court now applies the First Amendment to state as well as federal action is the incorporation doctrine.

Under the incorporation doctrine, the core protections of the First Amendment and other parts of the Bill of Rights have been applied to the states through the due process clause of the Fourteenth Amendment—the clause that says states may not "deprive any person of life, liberty or property without due process of law."

The Fourteenth Amendment was passed in 1868, but it was not until early this century that the incorporation doctrine took hold, ushering in the modern era of broadly enjoyed individual rights.

"Without the incorporation doctrine, political debate would be a much more chancy thing," says Wake Forest University law professor Michael Curtis, an expert on the doctrine. "Most of the Supreme Court's First Amendment jurisprudence would not exist."

All of which lends significance to recent comments by Justice Antonin Scalia. During a talk at Concordia Seminary in St. Louis in January, Scalia was asked about the controlling power of the incorporation doctrine over the application of First Amendment law to the states.

"I doubt whether that's an accurate interpretation of it, but that's what the court said," was Scalia's reply. "The court has interpreted that as essentially sucking up the Bill of Rights and applying the Bill of Rights against the states," said Scalia. "And not the whole Bill of Rights, just some of the Bill of Rights, essentially those provisions that we like." (It is true that the Supreme Court has only incorporated some but not all of the Bill of Rights to apply to the states. The Fifth Amendment's requirement of grand juries in criminal cases and the Seventh Amendment's guarantee of jury trials in civil cases, for example, have not been applied to the states.)

In the talk, Scalia also said the incorporation doctrine was responsible for some of the court's "strange" decisions. "You know, can you have a creche and a menorah? Is it okay to have both a creche and a menorah and a Christmas tree? Or what if you have a Christmas tree and not a menorah? We never had these weird cases before, because it was not a matter of federal law. The federal Constitution did not cover it."

Scalia's comments drew applause from the audience, but criticism from some who later heard his remarks.

"Scalia's views represent a very far-out legal theory," says Barry Lynn of Americans United for the Separation of Church and State. If Scalia's views were adopted, individual rights would "depend on the whim of 50 state legislatures. No one seriously wants to go back to that era."

Early in the Reagan administration, some officials did want to return to the pre-incorporation doctrine era. Attorney General Edwin Meese attacked incorporation as a distortion of the intentions of the framers of the Constitution. But his attack produced few results, and the incorporation doctrine is mainly debated in law reviews.

Paul Cappuccio, a Washington. D.C., lawyer and a former Scalia law clerk, says the justice's comment was "probably a throwaway line" with little significance. "All of his jurisprudence applies the doctrine. Who knows what the answer is?"

The following are Supreme Court decisions that "incorporated" features of the First Amendment to apply to state as well as federal action.

  • Freedom of speech and press: Gitlow v. New York, 268 U.S. 652 (1925). Applied the First Amendment to a New York anti-anarchy law challenged by a Socialist who was arrested for leafleting.
  • Freedom of assembly: DeJonge v. Oregon, 299 U.S. 353 (1937). Overturned an Oregon criminal syndicalism law used to arrest a Communist for organizing a meeting.
  • Free exercise of religion: Cantwell v. Connecticut, 310 U.S. 296 (1940). A victory for a Jehovah's Witness member arrested for door-to-door soliciting.
  • Establishment of religion: Everson v. Board of Education, 330 I.S. 1 (1947). Applied the First Amendment to a New Jersey law that allowed school boards to reimburse parents for the cost of student transportation to and from parochial schools.
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