Embedded Files
Chapter Four
Core Doctrines of Constitutional Law
Chapter Outline
Chapter Outline
A. Overview
B. State Action
C. Hierarchy of Laws and Civil Rights Legislation
D. Limits on Judicial Power
E. The Incorporation Doctrine
F. Due Process and Equal Protection
G. Levels of Judicial Scrutiny
A. Overview
After reading chapters about the United States Constitution and the Supreme Court, most students are eager to dive into the study of the amendments. After all, learning about individual rights is much more engaging to the average person than scrutinizing a specific Article in the Constitution that explains how states ratified the Constitution. At the same time, students must first develop a solid understanding of foundational constitutional principles before they can meaningfully engage with cases that interpret the amendments. This chapter will include an examination of the First Amendment, but it will primarily focus on these core doctrines: the requirement of "state action", the role of civil rights legislation, limits on judicial power, the incorporation doctrine, the right to due process, the guarantee of equal protection, and the different levels of judicial scrutiny the Supreme Court uses when evaluating laws. Understanding these basic concepts will provide students with the necessary context to start learning the intricacies of the amendments.
B. State Action
It is very common to see someone post on social media, "My First Amendment rights were violated because Facebook removed my post!" However, such a statement is inaccurate. A violation of a citizen's right to free speech under the First Amendment occurs if the government suppresses someone's speech. Since Meta, a private company, owns Facebook and Instagram, their decision to delete a post is not a free speech violation (Meta, n.d.). The result would be different if a public official in his or her official capacity ran a Facebook page on behalf of their elected office and deleted every negative comment (Davison v. Randall, 2019; Knight First Amendment Institute v. Trump, 2019; Lindke v. Freed, 2024). Such an act would qualify as state action, meaning an action carried out by or involving a federal, state, or municipal government. In this example, social media was simply the forum through which the government restricted speech.
Recent events show that the line between government involvement and private decision-making can become blurred. In September 2025, ABC suspended Jimmy Kimmel Live after Kimmel's monologue included jokes about Donald Trump and his supporters in the aftermath of Charlie Kirk’s murder, sparking outcry from conservative elected officials and social media commentators. The controversy got worse when FCC Chairman Brendan Carr condemned Kimmel’s remarks and warned of possible regulatory consequences. At the same time, Nexstar, which owns dozens of ABC affiliates, pulled the show amid advertiser concerns and security threats. Disney, which owns the ABC network, chose to suspend the program indefinitely (Grynbaum, 2025).
These events sparked a heated national debate over free speech and political influence on the media. Some argued that the decision was purely corporate, based on advertising and market concerns. Others claimed that governmental pressure, such as the FCC chair’s public threats to revoke broadcast licenses, combined with the financial vulnerability of affiliates seeking FCC approval for other deals, amounted to a First Amendment violation. After his suspension, Kimmel reportedly threatened to file a lawsuit against ABC, and there were social media reports about thousands of customers cancelling their Disney+ subscriptions. Within a week of his suspension, Kimmel was back on the air (New York Times, 2025).
Because the issue has already been resolved, the Supreme Court will not review whether this situation constituted a First Amendment violation. Regardless, the Court has recognized that government pressure on private entities to restrict speech can amount to state action. In NRA v. Vullo (2024), the Court held that the coercion of private parties by state officials to punish a disfavored speaker may be unconstitutional. In Murthy v. Missouri (2024), the Court examined allegations that federal officials pressured social media companies to suppress posts about COVID-19 and election integrity. The Court noted that government “coerc[ion] or significant encourag[ement]” of private censorship could trigger First Amendment scrutiny. The Court dismissed Murthy on procedural grounds, but it emphasized that the government may not coerce platforms through threats of punishment or regulatory action to remove protected speech.
This leads to an important clarification about how the term censorship is commonly used. Some people use the word censorship to refer to suppression or restriction of expression by a private platform rather than by the government. However, there is no clear agreement or consensus on this distinction, and many people use the word censorship to refer to government restrictions as well (Freedom Forum, n.d.).
Questions about when private conduct becomes state action go far beyond the First Amendment. They arise whenever private behavior is closely tied to government authority, triggering constitutional protections in areas such as criminal procedure, property rights, racial discrimination, and other areas of law. This concept is illustrated in landmark cases like Shelley v. Kraemer.
The Shelley family in their home in St. Louis, Missouri
Image 4.1
(Hemphill, 2018)
Landmark Case Spotlight:
Shelley v. Kraemer (1948)
Case Excerpt (Not Full Case)
Click here for full text.
Mr. Chief Justice VINSON delivered the opinion of the Court.
These cases present for our consideration questions relating to the validity of court enforcement of private agreements, generally described as restrictive covenants, which have as their purpose the exclusion of persons of designated race or color from the ownership or occupancy of real property. Basic constitutional issues of obvious importance have been raised. The first of these cases comes to this Court on certiorari to the Supreme Court of Missouri. On February 16, 1911, thirty out of a total of thirty-nine owners of property fronting both sides of Labadie Avenue between Taylor Avenue and Cora Avenue in the city of St. Louis, signed an agreement, which was subsequently recorded, providing in part:
". . . the said property is hereby restricted to the use and occupancy for the term of Fifty (50) years from this date, so that it shall be a condition ....that hereafter no part of said property or any portion thereof shall be, for said term of Fifty-years, occupied by any person not of the Caucasian race, .....it being intended hereby to restrict the use of said property for said period of time against the occupancy as owners or tenants of any portion of said property for resident or other purpose by people of the Negro or Mongolian Race."
The entire district described in the agreement included fifty-seven parcels of land.The thirty owners who signed the agreement held title to forty-seven parcels, including the particular parcel involved in this case. At the time the agreement was signed, five of the parcels in the district were owned by Negroes. One of those had been occupied by Negro families since 1882, nearly thirty years before the restrictive agreement was executed. The trial court found that owners of seven out of nine homes on the south side of Labadie Avenue, within the restricted district and "in the immediate vicinity" of the premises in question, had failed to sign the restrictive agreement in 1911. At the time this action was brought, four of the premises were occupied by Negroes, and had been so occupied for periods ranging from twenty-three to sixty-three years. A fifth parcel had been occupied by Negroes until a year before this suit was instituted.
On August 11, 1945, pursuant to a contract of sale, petitioners Shelley, who are Negroes, for valuable consideration received from one Fitzgerald a warranty deed to the parcel in question. The trial court found that petitioners had no actual knowledge of the restrictive agreement at the time of the purchase. On October 9, 1945, respondents, as owners of other property subject to the terms of the restrictive covenant, brought suit in the Circuit Court of the city of St. Louis praying that petitioners Shelley be restrained from taking possession of the property and that judgment be entered divesting title out of petitioners Shelley and revesting title in the immediate grantor or in such other person as the court should direct. The trial court denied the requested relief on the ground that the restrictive agreement, upon which respondents based their action, had never become final and complete because it was the intention of the parties to that agreement that it was not to become effective until signed by all property owners in the district, and signatures of all the owners had never been obtained.
The Supreme Court of Missouri reversed and directed the trial court to grant the relief for which respondents had prayed. That court held the agreement effective and concluded that enforcement of its provisions violated no rights guaranteed to petitioners by the Federal Constitution. At the time the court rendered its decision, petitioners were occupying the property in question.
The second of the cases under consideration comes to this Court from the Supreme Court of Michigan. The circumstances presented do not differ materially from the Missouri case. In June, 1934, one Ferguson and his wife, who then owned the property located in the city of Detroit which is involved in this case, executed a contract providing in part: "This property shall not be used or occupied by any person or persons except those of the Caucasian race. " "It is further agreed that this restriction shall not be effective unless at least eighty percent of the property fronting on both sides of the street in the block where our land is located is subjected to this or a similar restriction."
The agreement provided that the restrictions were to remain in effect until January 1, 1960. The contract was subsequently recorded, and similar agreements were executed with respect to eighty percent of the lots in the block in which the property in question is situated. By deed dated November 30, 1944, petitioners, who were found by the trial court to be Negroes, acquired title to the property, and thereupon entered into its occupancy. On January 30, 1945, respondents, as owners of property subject to the terms of the restrictive agreement, brought suit against petitioners in the Circuit Court of Wayne County.
Whether the equal protection clause of the Fourteenth Amendment inhibits judicial enforcement by state courts of restrictive covenants based on race or color is a question which this Court has not heretofore been called upon to consider. ……….Not only does the restriction seek to proscribe use and occupancy of the affected properties by members of the excluded class, but, as construed by the Missouri courts, the agreement requires that title of any person who uses his property in violation of the restriction shall be divested. The restriction of the covenant in the Michigan case seeks to bar occupancy by persons of the excluded class. It provides that "This property shall not be used or occupied by any person or persons except those of the Caucasian race." It should be observed that these covenants do not seek to proscribe any particular use of the affected properties. Use of the properties for residential occupancy, as such, is not forbidden. The restrictions of these agreements, rather, are directed toward a designated class of persons and seek to determine who may and who may not own or make use of the properties for residential purposes. The excluded class is defined wholly in terms of race or color; "simply that, and nothing more."
It cannot be doubted that among the civil rights intended to be protected from discriminatory state action by the Fourteenth Amendment are the rights to acquire, enjoy, own and dispose of property. Equality in the enjoyment of property rights was regarded by the framers of that Amendment as an essential pre-condition to the realization of other basic civil rights and liberties which the Amendment was intended to guarantee.
Thus,§ 1978 of the Revised Statutes, derived from § 1 of the Civil Rights Act of 1866, which was enacted by Congress while the Fourteenth Amendment was also under consideration provides: "All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.” This Court has given specific recognition to the same principle. Buchanan v. Warley, 245 U. S. 60 (1917). It is likewise clear that restrictions on the right of occupancy of the sort sought to be created by the private agreements in these cases could not be squared with the requirements of the Fourteenth Amendment if imposed by state statute or local ordinance. We do not understand respondents to urge the contrary. In the case of Buchanan v. Warley, supra, a unanimous Court declared unconstitutional the provisions of a city ordinance which denied to colored persons the right to occupy houses in blocks in which the greater number of houses were occupied by white persons, and imposed similar restrictions on white persons with respect to blocks in which the greater number of houses were occupied by colored persons. During the course of the opinion in that case, this Court stated: "The Fourteenth Amendment and these statutes enacted in furtherance of its purpose operate to qualify and entitle a colored man to acquire property without state legislation discriminating against him solely because of color."
We conclude, therefore, that the restrictive agreements, standing alone, cannot be regarded as violative of any rights guaranteed to petitioners by the Fourteenth Amendment. So long as the purposes of those agreements are effectuated by voluntary adherence to their terms, it would appear clear that there has been no action by the State, and the provisions of the Amendment have not been violated. ……But here there was more. These are cases in which the purposes of the agreements were secured only by judicial enforcement by state courts of the restrictive terms of the agreements. The respondents urge that judicial enforcement of private agreements does not amount to state action, or, in any event, the participation of the State is so attenuated in character as not to amount to state action within the meaning of the Fourteenth Amendment. Finally, it is suggested, even if the States in these cases may be deemed to have acted in the constitutional sense, their action did not deprive petitioners of rights guaranteed by the Fourteenth Amendment. We move to a consideration of these matters.
The short of the matter is that, from the time of the adoption of the Fourteenth Amendment until the present, it has been the consistent ruling of this Court that the action of the States to which the Amendment has reference includes action of state courts and state judicial officials. Although, in construing the terms of the Fourteenth Amendment, differences have from time to time been expressed as to whether particular types of state action may be said to offend the Amendment's prohibitory provisions, it has never been suggested that state court action is immunized from the operation of those provisions simply because the act is that of the judicial branch of the state government.
Against this background of judicial construction, extending over a period of some three-quarters of a century, we are called upon to consider whether enforcement by state courts of the restrictive agreements in these cases may be deemed to be the acts of those States, and, if so, whether that action has denied these petitioners the equal protection of the laws which the Amendment was intended to insure. We have no doubt that there has been state action in these cases in the full and complete sense of the phrase. The undisputed facts disclose that petitioners were willing purchasers of properties upon which they desired to establish homes. The owners of the properties were willing sellers, and contracts of sale were accordingly consummated. It is clear that, but for the active intervention of the state courts, supported by the full panoply of state power, petitioners would have been free to occupy the properties in question without restraint.
These are not cases, as has been suggested, in which the States have merely abstained from action, leaving private individuals free to impose such discriminations as they see fit. Rather, these are cases in which the States have made available to such individuals the full coercive power of government to deny to petitioners, on the grounds of race or color, the enjoyment of property rights in premises which petitioners are willing and financially able to acquire and which the grantors are willing to sell. The difference between judicial enforcement and non-enforcement of the restrictive covenants is the difference to petitioners between being denied rights of property available to other members of the community and being accorded full enjoyment of those rights on an equal footing.
The enforcement of the restrictive agreements by the state courts in these cases was directed pursuant to the common law policy of the States as formulated by those courts in earlier decisions. In the Missouri case, enforcement of the covenant was directed in the first instance by the highest court of the State after the trial court had determined the agreement to be invalid for want of the requisite number of signatures. In the Michigan case, the order of enforcement by the trial court was affirmed by the highest state court. The judicial action in each case bears the clear and unmistakable imprimatur of the State. We have noted that previous decisions of this Court have established the proposition that judicial action is not immunized from the operation of the Fourteenth Amendment simply because it is taken pursuant to the state's common law policy. Nor is the Amendment ineffective simply because the particular pattern of discrimination, which the State has enforced, was defined initially by the terms of a private agreement. State action, as that phrase is understood for the purposes of the Fourteenth Amendment, refers to exertions of state power in all forms. And when the effect of that action is to deny rights subject to the protection of the Fourteenth Amendment, it is the obligation of this Court to enforce the constitutional commands.
We hold that, in granting judicial enforcement of the restrictive agreements in these cases, the States have denied petitioners the equal protection of the laws, and that, therefore, the action of the state courts cannot stand. We have noted that freedom from discrimination by the States in the enjoyment of property rights was among the basic objectives sought to be effectuated by the framers of the Fourteenth Amendment. That such discrimination has occurred in these cases is clear. Because of the race or color of these petitioners, they have been denied rights of ownership or occupancy enjoyed as a matter of course by other citizens of different race or color. The Fourteenth Amendment declares "that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color." Strauder v. West Virginia, supra, at 100 U. S. 307.
Only recently, this Court had occasion to declare that a state law which denied equal enjoyment of property rights to a designated class of citizens of specified race and ancestry was not a legitimate exercise of the state's police power, but violated the guaranty of the equal protection of the laws. Oyama v. California, 332 U. S. 633 (1948). Nor may the discriminations imposed by the state courts in these cases be justified as proper exertions of state police power. [. 27] Cf. Buchanan v. Warley, supra. Respondents urge, however, that, since the state courts stand ready to enforce restrictive covenants excluding white persons from the ownership or occupancy of property covered by such agreements, enforcement of covenants excluding colored persons may not be deemed a denial of equal protection of the laws to the colored persons who are thereby affected.
This contention does not bear scrutiny. The parties have directed our attention to no case in which a court, state or federal, has been called upon to enforce a covenant excluding members of the white majority from ownership or occupancy of real property on grounds of race or color. But there are more fundamental considerations. The rights created by the first section of the Fourteenth Amendment are, by its terms, guaranteed to the individual. The rights established are personal rights. It is, therefore, no answer to these petitioners to say that the courts may also be induced to deny white persons rights of ownership and occupancy on grounds of race or color. Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.
Nor do we find merit in the suggestion that property owners who are parties to these agreements are denied equal protection of the laws if denied access to the courts to enforce the terms of restrictive covenants and to assert property rights which the state courts have held to be created by such agreements. The Constitution confers upon no individual the right to demand action by the State which results in the denial of equal protection of the laws to other individuals. And it would appear beyond question that the power of the State to create and enforce property interests must be exercised within the boundaries defined by the Fourteenth Amendment. Cf. Marsh v. Alabama, 326 U. S. 501 (1946).
The problem of defining the scope of the restrictions which the Federal Constitution imposes upon exertions of power by the States has given rise to many of the most persistent and fundamental issues which this Court has been called upon to consider. That problem was foremost in the minds of the framers of the Constitution, and, since that early day, has arisen in a multitude of forms. The task of determining whether the action of a State offends constitutional provisions is one which may not be undertaken lightly. Where, however, it is clear that the action of the State violates the terms of the fundamental charter, it is the obligation of this Court so to declare.
The historical context in which the Fourteenth Amendment became a part of the Constitution should not be forgotten. Whatever else the framers sought to achieve, it is clear that the matter of primary concern was the establishment of equality in the enjoyment of basic civil and political rights and the preservation of those rights from discriminatory action on the part of the States based on considerations of race or color..... Upon full consideration, we have concluded that, in these cases, the States have acted to deny petitioners the equal protection of the laws guaranteed by the Fourteenth Amendment. Having so decided, we find it unnecessary to consider whether petitioners have also been deprived of property without due process of law or denied privileges and immunities of citizens of the United States.
For the reasons stated, the judgment of the Supreme Court of Missouri and the judgment of the Supreme Court of Michigan must be reversed.
Reversed.
MR. JUSTICE REED, MR. JUSTICE JACKSON, and MR. JUSTICE RUTLEDGE took no part in the consideration or decision of these cases.
B. State Action - continued
Although the requirement of state action seems straightforward at first glance, analyzing recent First Amendment cases and the historic Shelley v. Kraemer decision shows that the lines can become blurred between private activity and government conduct. In Shelley v. Kraemer (1948), for example, the Court held that while private parties could agree to racially restrictive housing covenants, judicial enforcement of those covenants constitutes state action and therefore violates the Equal Protection Clause. When determining whether something constitutes state action and thereby triggers constitutional protections, it is helpful to first ask whether the activity in question regulates human behavior in some way. Then, consider whether the entity enforcing the rule is a government body, is closely entangled with government functions, or would require government assistance to ensure compliance.
Image 4.2
(Original Work, Getchell-Bastien)
C. Hierarchy of Laws and Important Civil Rights Legislation
This OER focuses primarily on Supreme Court cases because most constitutional rights are recognized and defined through case law, the body of legal principles developed through court decisions that interpret the Constitution. Case law follows the doctrine of stare decisis, which is the practice of courts adhering to precedent. However, case law is not the only kind of law. Statutes are enacted by state legislatures, federal codes are passed by Congress, executive orders are issued by the president, and administrative regulations are created by agencies such as the IRS or a state’s Department of Motor Vehicles. Additionally, common law consists of general principles developed through legal tradition that courts look to when no statute, regulation, or precedent applies. It is important to understand where these various laws fit in the hierarchy of laws.
As you can see in the graphic above, these different sources of law are organized into a hierarchy, meaning they are ranked in order of authority. At the very top is the Constitution, which is the supreme law of the land and takes precedence over every other source of law. Just below the Constitution is case law because courts have the power to interpret the Constitution and other laws. Next are statutes and codes, which are written laws created by elected legislatures at the state and federal level. These laws cannot conflict with the Constitution or binding court decisions. Executive orders follow because they carry the force of law but are limited to the powers granted to presidents by the Constitution and Congress. Administrative regulations come after that because agencies like the IRS or a state's DMV only have the authority delegated to them by legislatures or those holding executive office. At the very bottom are local ordinances, which are rules made by municipalities like cities and towns. While they matter locally, they have the least authority because they must always comply with all other laws (Teas, Jefferies, Shomaker, Watson, & Gilmour, n.d.)
After reviewing where legislation fits into the hierarchy of laws, it is helpful to review major civil rights acts before reading further. These acts are referenced repeatedly throughout this OER. Only the most significant ones are included in blue below, and others will be introduced in later sections where they are most relevant.
Key Federal Legislation - Civil Rights and Civil Liberties
Civil Rights Act of 1964 – Landmark law banning discrimination in public accommodations (Title II), employment (Title VII), and federally funded programs (Title VI) on the basis of race, color, religion, sex, or national origin.
Voting Rights Act of 1965 – Prohibits racial discrimination in voting; required pre-clearance for jurisdictions with a history of discrimination, later limited by Shelby County v. Holder (2013).
Age Discrimination in Employment Act of 1967 (ADEA) – Prohibits workplace discrimination against individuals over age 40.
Education Amendments of 1972, Title IX – Prohibited sex discrimination in federally funded education programs and activities.
Pregnancy Discrimination Act of 1978 – Amended Title VII to prohibit discrimination based on pregnancy, childbirth, or related medical conditions.
Americans with Disabilities Act (ADA) of 1990 – Prohibits discrimination based on disability in employment, public services, and public accommodations.
Lilly Ledbetter Fair Pay Act of 2009 – Restored workers’ ability to challenge ongoing pay discrimination by resetting the statute of limitations with each discriminatory paycheck.
The Civil Rights Act of 1964 bans segregation in public places such as hotels, restaurants, and theaters. It also bars discrimination based on race, religion, sex, or national origin in federally funded programs and outlaws employment discrimination by most employers. When first reading about the Act, students might wonder how Congress had the power to regulate private businesses and order them to stop segregating their customers. After all, the state action requirement, described above, would seem to prevent such regulation.
The answer lies in the Commerce Clause, which is found in Article I, Section 8, Clause 3 of the Constitution. It says that Congress has the power to, "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Additionally, the Necessary and Proper Clause, which is found in Article I, Section 8, Clause 18, allows Congress to pass laws needed to carry out its constitutional powers, like regulating state commerce. In 1964, when the Heart of Atlanta Motel sued to challenge the Civil Rights Act, the Supreme Court upheld the Act and ruled that Congress had the authority under the Commerce Clause to prohibit racial discrimination in public accommodations (Heart of Atlanta Motel v. United States, 1964).
D. Limits on Judicial Power
Students who are just beginning to study civil rights are often surprised to learn about the basic limits on the power of appellate courts. Unlike trial courts, appellate courts do not call witnesses, use juries, or decide which evidence gets admitted. Instead, they only review the official record from a lower court and decide whether the law was applied correctly. Additionally, not everyone who wants an appeal gets one. Most requests for appeals are denied. Appellate courts will only agree to hear a case when there are errors that could have changed the outcome of the case at trial or when fundamental flaws occurred in the proceedings below. Most appellate cases are decided by a panel of three judges, but in rare and important situations, the full court may rehear the case en banc, meaning all active judges on that appellate court participate in the decision.
Another important limit on judicial power is found in Article III, which restricts federal courts to hearing actual cases and controversies. The Constitution provides that “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution… [and] to Controversies,” meaning that courts can only decide real, concrete disputes. In constitutional law, this principle is known as justiciability. There are several aspects to justiciability defined in blue below. Please note that the Supreme Court sometimes makes exceptions to these rules, and there is considerable overlap between the terms below.
Justiciability - Limits on Federal Court Jurisdiction
Justiciability - Limits on Federal Court Jurisdiction
Advisory Opinions – Federal courts cannot issue opinions that answer hypothetical questions or that only interpret the law in the abstract. Example: If a member of Congress asked the Supreme Court whether a bill would be constitutional while it is in the middle of being drafted, the Court must decline to hear the case because it cannot answer hypothetical questions.
Collusive Cases – A lawsuit must involve parties who actually have a conflict. If both sides want the same outcome and are only testing the law, the courts will not hear the case. Example: Two companies file a lawsuit against each other to try to get a law struck down so they can save money, and neither has truly been harmed. The Court would not agree to hear the case.
Standing – To bring a case, a plaintiff must be the correct party. He or she must have a personal stake in the outcome or an actual injury, caused by the defendant.
Example: A voter in California tries to sue over how elections are run in Texas. Because the voter has not personally suffered an injury in Texas, they lack standing.Ripeness – Courts require that a dispute be ready for review, not premature.
Example: A business sues to challenge a regulation before the rule has even gone into effect. The Court would likely dismiss the case as unripe because no injustice has occurred yet.Mootness – If a dispute has already been resolved or no longer presents a live controversy, the courts will not decide it. Example: A student sues a university over a suspension, but the suspension is lifted and the student graduates before the case is heard. The Court would dismiss it as moot because it was filed too late.
Political Question Doctrine – Courts avoid cases that the Constitution assigns to other elected branches or that are too politically charged for judicial resolution.
Example: A state sues the President, claiming that a treaty he negotiated with another country is unconstitutional because it gives away too much power. The Court would likely dismiss the case as a political question because the Constitution commits treaty-making to the President and the Senate. The Court has also treated disputes over the constitutional amendment process (Article V) as political questions best left to Congress.
(Justiciability, Wex, Cornell Law School)
E. The Incorporation Doctrine
When first studying civil rights and liberties, one might assume that the first ten amendments apply to both the federal government and state governments. This assumption is inaccurate. The Bill of Rights was originally understood to apply only to the federal government. The text of the Constitution restricted “Congress”, not the states, and state constitutions were expected to protect individual rights (Barron v. Baltimore, 1833). Over time, this point of view changed. After the Civil War and the passage of the Fourteenth Amendment, litigants and legal scholars began arguing that the Fourteenth Amendment made the protections of the Bill of Rights applicable to state governments.
Beginning in the early 20th century, the Supreme Court started using language in the Constitution to apply individual protections from the Bill of Rights to the states. The Due Process Clause of the Fourteenth Amendment, Section 1, says in part: “nor shall any State deprive any person of life, liberty, or property, without due process of law.” In 1925, the Supreme Court decided Gitlow v. New York and held that the First Amendment’s guarantees of speech and press applied to the states through the Fourteenth Amendment’s Due Process Clause, laying the foundation for what became known as the incorporation doctrine. Instead of applying every right at once, the Supreme Court chose a system called selective incorporation, where it applied only certain rights that it viewed as essential. When reading Supreme Court cases, one will notice that nearly every decision includes a brief discussion of whether a particular amendment has been “incorporated” ( Cornell Law School, Wex, “Incorporation Doctrine”).
Image 4.3
(Cornell Law School, Wex, “Incorporation Doctrine”)
F. Due Process and Equal Protection
The Due Process Clause plays a critical role beyond its function in the incorporation doctrine. The phrases “due process” and “equal protection” appear in nearly all cases involving the rights of criminal defendants or challenges to laws that allegedly discriminate. The Due Process Clause first appeared in the Fifth Amendment, which states: “No person shall… be deprived of life, liberty, or property, without due process of law.” The Fourteenth Amendment extended the same protection to the states, declaring: “nor shall any State deprive any person of life, liberty, or property, without due process of law.” In simple terms, due process means that the government must act fairly and follow established procedures before taking away a person’s life, freedom, or property. For example, a person accused of a crime must be informed of their Miranda rights, formally charged in court, provided a fair trial, given a fair sentence, and protected from cruel and unusual punishment. Some scholars make the distinction of calling this procedural due process.
The term substantive due process has emerged over the past century, and it refers to how many believe the Fourteenth Amendment guarantees fair legal procedures and protects certain fundamental rights from government interference, even if those rights are not specifically mentioned in the Constitution. Courts have used it to strike down laws that infringe on rights considered essential to liberty and privacy, such as the right to marry, the right to use contraception, parental rights, and other reproductive rights. It is controversial because it relies on judicial interpretation of what counts as “fundamental", which some view as necessary to protect individual freedom, while others see it as an example of judicial activism. Most cases mentioning due process focus on procedural protections, while substantive due process is reserved for rare but highly significant cases about fundamental rights.
The Equal Protection Clause also appears in the Fourteenth Amendment. It says “nor [shall any State] deny to any person within its jurisdiction the equal protection of the laws.” Put simply, equal protection means the Court has to strike down any laws that do not treat people equally or single groups for different treatment. For example, a law cannot put limits on someone's right to vote based on race or gender.
These guarantees highlight the distinction between civil rights and civil liberties, two terms often used interchangeably by the general public. Civil liberties are basic freedoms found in the Bill of Rights that protect individuals from government interference, such as freedom of speech, protection from unreasonable searches, and the right to due process in court. Civil rights involve the government’s duty to ensure equal treatment under the law and enforce the legal rights established in federal laws and statutes that prohibit discrimination (FindLaw, “Civil Rights vs. Civil Liberties”).
G. Levels of Judicial Scrutiny
The levels of judicial scrutiny explain how the Supreme Court applies different standards when reviewing laws that may be discriminatory or impact fundamental rights. At first, it may seem that all discriminatory laws should be struck down, but not all classifications are equally likely to be unfair or unconstitutional. For example, race-based distinctions in law are almost impossible to justify, while some gender-based distinctions can be upheld if connected to biological differences. Each court decision specifies the level of scrutiny applied, but reviewing the chart below provides helpful context before examining civil rights cases (FindLaw, Challenging Laws: 3 Levels of Scrutiny Explained).
Image 4.4
(BARBRI, Conviser Mini Review, Constitutional Law Approach Chart)
Conclusion
Understanding the requirement of state action, the role of major civil rights legislation, the limits of judicial power, the incorporation of the amendments, the levels of judicial scrutiny, and the significance of due process and equal protection provide an essential background for studying First Amendment protections.
Sources
Please note that the URLs listed below are presented as plain text rather than active hyperlinks in order to avoid triggering automated security filters.
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Davison v. Randall, 912 F.3d 666 (4th Cir. 2019).
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Freedom Forum. (n.d.). What is censorship? Freedom Forum. https://www.freedomforum.org/state-action
Gitlow v. New York, 268 U.S. 652 (1925).
Grynbaum, M. M. (2025, September 20). Jimmy Kimmel’s show suspended after Trump joke sparks backlash. The New York Times. https://www.nytimes.com/2025/09/20/business/jimmy-kimmel-show-abc-kirk-fcc.html
Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964).
Hemphill, E. (2018, August 30). “We live here” revisits Shelley v. Kraemer 70 years later by talking with family who changed history [Radio segment]. St. Louis Public Radio. https://www.stlpr.org/show/st-louis-on-the-air/2018-08-30/we-live-here-revisits-shelley-v-kraemer-70-years-later-by-talking-with-family-who-changed-history
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