IFAS | Freedom Writer | July/August 1997 | history.html

An important piece of U.S. Constitutional history:
The Doctrine of Incorporation

The First Amendment to the United States Constitution contains a mere 45 words, yet protects our individual rights to: religious liberty; freedom of speech; freedom of the press; freedom of assembly; and the freedom to complain to our government to right wrongs.

Prior to the twentieth century, the First Amendment, along with the next nine amendments (Bill of Rights), was originally viewed as a limitation on the federal government's action against citizens of the individual states. During the twentieth century, th e United States Supreme Court, utilizing the Fourteenth Amendment, began to view the Bill of Rights as a limitation on state and local governments, as well as the federal government.

Why? After the Civil War, it was not the federal government that sought to deny African Americans equal protection of the law, but state and local governments. The Fourteenth Amendment, ratified on July 9, 1868, just after the Civil War, proclaimed that n o state may deny any person within its jurisdiction equal protection of the law. Through a series of 20th century Supreme Court decisions, most of the limitations on the federal government in the Bill of Rights became applicable to the state and local gov ernments. This process has been termed the doctrine of incorporation.

The first time the incorporation doctrine was utilized to make the restrictions of the First Amendment applicable to state and local governments was in the 1940 case of Cantwell v. Connecticut. In Cantwell, a Jehovah's Witness wa s arrested in the course of proselytizing on the streets of New Haven, and was convicted for inciting a breach of the peace. The Supreme Court reversed the conviction and found that Cantwell's behavior did not breach the peace. The Court went on to state that the statute he was convicted under was sweeping and included a great variety of constitutionally protected conduct, including Cantwell's free exercise of religion.

© 1998 Institute for First Amendment Studies, Inc.