9.4 The Right to Privacy and Selective Incorporation Doctrine

The Right to Privacy and Selective Incorporation Doctrine

Quick Answer: The Bill of Rights originally restricted only the federal government (Barron v. Baltimore). Through selective incorporation, the Supreme Court utilized the Fourteenth Amendment's Due Process Clause to apply fundamental Bill of Rights protections piecemeal to the states, beginning with free speech in Gitlow v. New York (1925). Alongside incorporation, the Court recognized an unenumerated Right to Privacy derived from the "penumbras" of multiple amendments (Griswold v. Connecticut), which established reproductive and personal autonomy rights later modified by landmark cases from Roe to Dobbs, Lawrence, and Obergefell.

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1. The Doctrine of Selective Incorporation: Historical Evolution

When the Bill of Rights was ratified in 1791, its opening words—"Congress shall make no law..."—reflected the Anti-Federalist objective of restraining the newly created national government, not the states.

Early Non-Incorporation: Barron v. Baltimore (1833)

• Facts: John Barron co-owned a lucrative commercial wharf in Baltimore harbor. As the city expanded, municipal street construction redirected streams that deposited vast amounts of silt and sand into the harbor, rendering the water too shallow for merchant ships to dock at Barron's wharf. Barron sued the city under the Fifth Amendment's Takings Clause, alleging that local government had deprived him of private property without "just compensation."
• Ruling: The Supreme Court ruled unanimously (Chief Justice John Marshall) against Barron.
• Marshall's Rule: Marshall held that the Constitution was ordained and established by the people for their federal government, not for the government of individual states. The Bill of Rights contains no application to state or municipal governments. If a state constitution failed to protect individual rights, citizens had to seek redress through their state legislatures or state courts, not the federal judiciary.

[ 1791–1868: Dual Citizenship Era ]
Federal Government Restricted by Bill of Rights <---> States Restricted ONLY by State Constitutions
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                         [ 14th Amendment Ratified (1868) ]
           "Nor shall any State deprive any person of life, liberty, or
                    property, without due process of law..."
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[ Gitlow v. New York (1925) Launches SELECTIVE INCORPORATION ]
Supreme Court applies Bill of Rights to states PIECEMEAL via 14th Amendment Due Process

The Fourteenth Amendment and the Incorporation Debate

Following the Civil War, the nation ratified the Fourteenth Amendment (1868) to protect newly freed African Americans from oppressive state Black Codes. Its Due Process Clause explicitly commands:

"...nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

For decades, legal scholars and Supreme Court justices debated how this clause intersected with the Bill of Rights:

• Total Incorporation (The Hugo Black View): Championed by Justice Hugo Black, this view argued that the Fourteenth Amendment's framers intended to incorporate the entire Bill of Rights wholesale against the states in one stroke. Black argued that selective incorporation gave unelected judges too much subjective discretion to pick and choose which rights were "fundamental."
• Selective Incorporation (The Majority Doctrine): Championed by Justices Benjamin Cardozo, Felix Frankfurter, and William Brennan, this view prevailed. The Court rejected total incorporation, choosing instead to evaluate each Bill of Rights provision case-by-case. Under the benchmark articulated in Palko v. Connecticut (1937), the Court incorporates only those rights that are "implicit in the concept of ordered liberty" or "deeply rooted in this Nation's history and tradition."

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2. Major Incorporation Milestones and Unincorporated Clauses

Selective incorporation officially commenced with free speech in Gitlow v. New York (1925). Benjamin Gitlow, a socialist leader, was convicted under New York's Criminal Anarchy Law for publishing the Left Wing Manifesto, which advocated mass strikes to establish a revolutionary socialist system. While the Court upheld his conviction under the bad tendency test, it made a historic constitutional ruling: freedom of speech and press are fundamental personal rights and "liberties" protected by the Due Process Clause of the Fourteenth Amendment from impairment by the states.

Chronological Matrix of Major Incorporation Cases

Non-Incorporated Provisions (Frequently Tested on CLEP)

It is equally important for the CLEP exam to know which parts of the Bill of Rights remain unincorporated against the states:

1. Third Amendment: Quartering soldiers in private homes during peacetime (Note: The Second Circuit incorporated this in Engblom v. Carey 1982, but the Supreme Court has never formally addressed or incorporated it).
2. Fifth Amendment Grand Jury Indictment Clause (Hurtado v. California, 1884): States are not constitutionally required to use grand juries for criminal indictments. States are entirely free to initiate felony prosecutions through prosecutor-filed informations following a preliminary hearing.
3. Seventh Amendment Civil Jury Trial Clause (Minneapolis & St. Louis R. Co. v. Bombolis, 1916): The requirement of a jury trial in civil common-law suits exceeding twenty dollars applies exclusively to federal courts, leaving states free to structure civil bench trials or lower jury thresholds.

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3. The Constitutional Right to Privacy: Penumbras and Emanations

Nowhere in the text of the Constitution or Bill of Rights does the word "privacy" appear. However, the Supreme Court has established that an implied constitutional right to personal and bodily privacy exists, protecting individuals from intrusive state surveillance and regulation of personal decisions.

Griswold v. Connecticut (1965)

• Facts: Estelle Griswold, the executive director of the Planned Parenthood League of Connecticut, and Dr. C. Lee Buxton opened a birth control clinic in New Haven. They were arrested and convicted under an 1879 Connecticut statute that made it a crime to use "any drug, medicinal article or instrument for the purpose of preventing conception," and subjected medical personnel who advised on contraceptives to criminal accomplice liability.
• Ruling: The Supreme Court ruled 7–2 (Justice William O. Douglas) that the Connecticut statute was unconstitutional.
• The Penumbra Doctrine: Douglas explained that specific guarantees in the Bill of Rights have "penumbras" (shadows) formed by "emanations" from those guarantees that help give them life and substance. Multiple amendments collectively create a constitutional zone of privacy:
  • First Amendment: Freedom of association and assembly implies privacy of belief and association.
  • Third Amendment: Prohibition against quartering soldiers in private homes protects domestic privacy.
  • Fourth Amendment: Protection of persons, houses, papers, and effects against unreasonable searches affirms personal privacy.
  • Fifth Amendment: Privilege against self-incrimination creates a zone of private thought and conscience.
  • Ninth Amendment: Confirms that the enumeration of certain rights in the Constitution does not deny or disparage other unenumerated fundamental rights retained by the people.
• Application: Douglas concluded that a law allowing police to enter the sacred precincts of marital bedrooms to search for contraceptive devices was an intolerable, destructive intrusion into the constitutional right to marital privacy.
• Expansion to Unmarried Persons: In Eisenstadt v. Baird (1972), the Court expanded Griswold under the Fourteenth Amendment's Equal Protection Clause, establishing that the right to privacy is an individual right, not an institution: "If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."

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4. Reproductive Autonomy: From Roe to Dobbs

[ Griswold v. Connecticut (1965) ] ---> Penumbral Right to Marital Privacy (Contraception)
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[ Roe v. Wade (1973) ]            ---> Privacy Encompasses Abortion (Trimester Framework)
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[ Planned Parenthood v. Casey (1992) ] ---> Reaffirmed Core; Replaced Trimesters with "Undue Burden"
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[ Dobbs v. Jackson (2022) ]       ---> Overruled Roe & Casey; Returned Authority to Legislatures

Roe v. Wade (1973)

• Facts: Norma McCorvey (under the legal pseudonym "Jane Roe"), an unmarried pregnant woman in Dallas, Texas, challenged a state criminal statute that outlawed all abortions except those performed by medical advice for the purpose of saving the mother's life.
• Ruling: The Supreme Court ruled 7–2 (Justice Harry Blackmun) that the constitutional right to privacy under the Fourteenth Amendment's Due Process Clause is broad enough to encompass a woman's decision to terminate a pregnancy.
• The Trimester Framework: Blackmun established a structured balancing test reconciling a woman's privacy right with state interests in maternal health and potential human life:
  • First Trimester (Weeks 1–12): State interest is at its weakest. The state cannot restrict or ban abortion; the decision rests solely with the woman and her attending physician.
  • Second Trimester (Weeks 13–24): State interest in maternal health increases. The state may enact regulations on abortion procedures reasonably related to preserving maternal health (e.g., surgical safety standards).
  • Third Trimester (Viability): The fetus reaches viability (capacity for meaningful life outside the womb). The state's interest in protecting potential human life becomes compelling. The state may regulate or completely ban abortion, except where necessary to preserve the life or health of the mother.

Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)

• The Court reaffirmed the "essential holding" of Roe (5–4), but abandoned Blackmun's rigid trimester framework.
• The Undue Burden Standard: The Court established that states could regulate abortion throughout pregnancy prior to fetal viability, provided the regulations do not place an "undue burden"—defined as a substantial obstacle in the path of a woman seeking an abortion. Post-viability, states could ban abortion with life-and-health exceptions.

Dobbs v. Jackson Women's Health Organization (2022)

• Facts: Mississippi enacted the Gestational Age Act in 2018, prohibiting all abortions after 15 weeks of gestational age, well before fetal viability. Mississippi's sole abortion clinic challenged the statute under Roe and Casey.
• Ruling: In a historic 5–4/6–3 decision written by Justice Samuel Alito, the Supreme Court explicitly overruled Roe v. Wade and Planned Parenthood v. Casey.
• Constitutional Rationale: Alito held that the Constitution makes no express reference to abortion, and any right protected by Fourteenth Amendment substantive due process must be "deeply rooted in this Nation's history and tradition" and implicit in the concept of ordered liberty. Examining founding-era, common-law, and 1868 statutory records, the Court concluded that abortion had been a crime throughout American history rather than a recognized liberty. The Court held that Roe was egregiously wrong from the start, returning the regulatory authority over abortion entirely to the people and their elected state and federal representatives.

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5. Personal Autonomy, Substantive Due Process, and Marriage Equality

While Dobbs eliminated constitutional privacy protections for abortion, Fourteenth Amendment Substantive Due Process continues to shield other fundamental personal liberty and autonomy interests:

Lawrence v. Texas (2003)

• Facts: Houston police officers entered John Lawrence's private apartment in response to a reported weapons disturbance and witnessed Lawrence and Tyron Garner engaging in a consensual sexual act. Both men were arrested and convicted under a Texas statute that made it a misdemeanor crime for two persons of the same sex to engage in "deviate sexual intercourse."
• Ruling: The Supreme Court ruled 6–3 (Justice Anthony Kennedy) that the Texas sodomy statute violated the Due Process Clause of the Fourteenth Amendment, formally overruling Bowers v. Hardwick (1986).
• Principle of Autonomy: Kennedy declared that adult individuals possess a fundamental liberty interest in their private, intimate associations. The state cannot demean their existence or control their personal destiny by making their private consensual sexual conduct a crime: "The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government."

Obergefell v. Hodges (2015)

• Facts: Same-sex couples across Michigan, Ohio, Kentucky, and Tennessee filed federal lawsuits challenging state constitutional amendments and statutes that defined marriage strictly as a union between one man and one woman, and refused to recognize legal same-sex marriages performed out of state.
• Ruling: The Supreme Court ruled 5–4 (Justice Anthony Kennedy) that the fundamental right to marry is guaranteed to same-sex couples under both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.
• Dual Constitutional Anchors:
  • Due Process: The right to personal choice regarding marriage is inherent in the concept of individual autonomy and dignity, shielding intimate human companionships.
  • Equal Protection: Denying same-sex couples the legal benefits, tax protections, parental rights, and social recognition of civil marriage relegates them to an unequal, stigmatized status.
• Impact: The ruling invalidated all state bans on same-sex marriage nationwide, establishing universal marriage equality as a fundamental constitutional right.

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6. Landmark Privacy and Substantive Due Process Precedents