Justice Thomas and "Partial Incorporation" of the EC

Supreme Court's Doctrine of Incorporation


By early in the twentieth century the Supreme Court found a way to “incorporate” certain provisions of the Bill of Rights against the states as “part of the liberty protected from state interference by the due process clause of the Fourteenth Amendment.” Under this concept of “selective incorporation,” a particular provision of the Bill of Rights “is made applicable to the states if the Justices are of the opinion that it was meant to protect a ‘fundamental’ aspect of liberty.” In other words, only individual liberties that are deemed to be “implicit in the concept of ordered liberty” or “fundamental to the American scheme of Justice” are incorporated against the states by the liberty clause of the Fourteenth Amendment. As Justice John Paul Stevens has put it so eloquently, “the idea of liberty” is the source of the incorporation doctrine.

Moreover, under the doctrine of incorporation these fundamental individual liberties are protected only against “deprivations” by the states. Individuals do not have a right to strike down laws that merely offend their sensibilities, because only laws that deprive them of protected liberty – i.e., laws which impose substantial burdens, undue burdens, or extreme restrictions on their individual liberty– constitute unconstitutional deprivations of liberty under the Fourteenth Amendment. Thus, the incorporated liberty of free exercise of religion is protected (if at all) only against laws that impose “substantial burdens” on an individual’s religious exercise; freedom of speech protects an individual’s right to say what he wishes to say and to refrain from being compelled to speak, not the right to censor the state’s message or to silence willing messengers of the government’s speech; the right to just compensation for regulatory takings is protected only against “extreme” regulations that deprive an owner of “economically viable use” of her property; and even a woman’s “fundamental liberty” to choose to terminate an unwanted pregnancy is protected only against laws that unduly burden her liberty to choose, not against laws that reasonably regulate her access to abortion or which merely seek to persuade her to give life to the child she is carrying.

Justice Thomas on Incorporation

A. Justice Thomas in Newdow (the Pledge case):

Justice Thomas observed that the best scholarship on the original understanding of the Establishment Clause supports the conclusion that it is “best understood as a federalism provision... [which] protects state establishments from federal interference but does not protect any individual right.” Thus, incorporation of the Establishment Clause against the states is incoherent, because it “prohibit[s] precisely what [it] was intended to protect – state establishments of religion.”

B. Justice Thomas in Zelman (the case upholding school choice):

It is unlikely that Justice Thomas will ever convince a Supreme Court majority to reject more than sixty years of precedent by deciding to “unincorporate” the Establishment Clause. However, his second position on incorporation – what I call “partial incorporation” – merely asks the Court to take its own theory of incorporation seriously by recognizing that “[w]hen rights are incorporated against the States through the Fourteenth Amendment they should advance, not constrain, individual liberty.” In other words, the Establishment Clause may mean one thing when applied as a structural limitation on the power of the federal government, and something else when applied only to protect individual liberty against state action.

For example, in Zelman a neutral voucher program that provided tuition aid to economically disadvantaged Cleveland schoolchildren to attend a private religious or nonreligious school chosen by their parents was attacked as a law that unconstitutionally advanced religion under the Establishment Clause. Although the Court upheld the law because it viewed the voucher scheme as consistent with its Establishment Clause test, Justice Thomas concurred and reasoned that the Fourteenth Amendment could not be employed to invalidate a neutral school choice program by incorporating a structural component of the Establishment Clause. As he put it so well: “There would be a tragic irony in converting the Fourteenth Amendment’s guarantee of individual liberty into a prohibition on the exercise of educational choice.” The incorporated Establishment Clause does not give A a constitutional right to restrict the liberty of B, nor does it forbid the states from giving parents a greater choice “as to where and in what manner to educate their children.”

C. Justice Thomas in Van Orden (the Texas Ten Commandmets Case):

"There is no question that, based on the original meaning of the Establishment Clause, the Ten Commandments display at issue here is constitutional. In no sense does Texas compel petitioner Van Orden to do anything. The only injury to him is that he takes offense at seeing the monument as he passes it on his way to the Texas Supreme Court Library. He need not stop to read it or even look at it, let alone to express support for it or adopt the Commandments as guides for his life. The mere presence of the monument along his path involves no coercion and thus does not violate the Establishment Clause."

This post is based upon my Regent Law Review article on "Justice Thomas and Partial Incorporation of the Establishment Clause." I have omitted footnotes and citations for purposes of brevity.