Amendment XIV
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‘‘substantive due process.’’ (2) The due process requirement, as originally
conceived, was designed essentially to limit the courts and to make certain that they conducted fair trials. Under the doctrines of substantive
due process, however, the standards of due process were applied to laws,
not just trials, to limit the powers of the State legislatures and local governments.
Thus in a series of cases extending from the 1880s to 1937, the Supreme
Court applied the concept of substantive or ‘‘economic’’ due process to
strike down countless State laws that allegedly interfered with economic
rights and had nothing to do with fair trials. In Lockner v. New York (1905),
for example, the Court invalidated a State law limiting the working hours
of bakery employees as a violation of ‘‘liberty of contract.’’ In West Coast
Hotel v. Parrish (1937), however, the Court suddenly abandoned this doctrine, taking a ‘‘hands-off’’ position that State legislatures should have
broad discretion to regulate the conditions of employment as they saw fit.
Meanwhile, however, the Court began moving in yet another direction during this period with respect to non-economic freedoms. In Gitlow
v. New York (1925), the Court applied its substantive due process rationale to the First Amendment. This Amendment, like the remaining portions of the Bill of Rights, applies only to the Federal government. The
Court held in Gitlow, however, that the First Amendment also limited
the States. The Court reasoned that the word ‘‘liberty’’ in the Due Process
Clause of the Fourteenth Amendment, which prohibits a State from denying any person life, liberty, or property in a trial, also means liberty of
speech and press. It is questionable whether the members of Congress
who wrote the Fourteenth Amendment intended for it to be interpreted
in this manner. This was the beginning of what has come to be known as
the Supreme Court’s doctrine of ‘‘incorporation,’’ a rule of interpretation
we have discussed before which holds that the various freedoms protected against Federal abridgment in the Bill of Rights may be ‘‘incorporated’’ or ‘‘absorbed’’ into the word ‘‘liberty’’ of the Due Process Clause
of the Fourteenth Amendment to restrict the States.
The remaining provision of Section 1 of the Fourteenth Amendment
prohibits the States from denying any person the equal protection of the
laws. The Equal Protection Clause has been instrumental in striking down
State laws that discriminate against racial minorities, religious minorities,