Inverse incorporation
Inverse incorporation refers to the legal interpretation that the protections guaranteed by the equal protection clause of the Fourteenth Amendment can be applied to the federal government through the due process clause of the Fifth Amendment. This concept emerged in the context of the U.S. Supreme Court's evolving understanding of equal protection under the law, particularly following the landmark case of Bolling v. Sharpe in 1954. Historically, the original Constitution and the Bill of Rights did not explicitly mention a right to equality, but the Fifth Amendment’s language implied some form of legal equality. The Supreme Court initially interpreted the equal protection clause narrowly, but over time, it began to recognize that discrimination by the federal government could also violate due process rights.
In cases such as Korematsu v. United States, justices acknowledged the fundamental unacceptability of racial discrimination, leading to a more robust application of scrutiny regarding federal actions. Ultimately, the Bolling v. Sharpe decision established that the same standards applied to state discrimination under the Fourteenth Amendment also extended to federal cases, marking a significant development in civil rights jurisprudence. This principle has been reinforced in subsequent rulings, ensuring a consistent framework for evaluating equal protection claims, whether they arise at the state or federal level.
Inverse incorporation
- Description: The Supreme Court gradually came to the conclusion that the equal protection requirement of the Fourteenth Amendment is binding on the federal government through the due process clause of the Fifth Amendment.
- Significance: Since the landmark case of Bolling v. Sharpe (1954), the Supreme Court has examined equal-protection claims against the federal government with the same standards of scrutiny that it uses when examining similar claims against the states.
In contrast to the Declaration of Independence of 1776, neither the original Constitution nor the Bill of Rights explicitly mentioned an inherent right to equality. The wording of the Fifth Amendment, however, implied a degree of legal equality“no person” was to be deprived of “life, liberty, or property, without due process of law,” nor was any person to be denied the privileges against self-incrimination or double jeopardy. The words “person” and “persons” apparently denoted human beings, and both words were used to refer to slaves in Articles I and IV of the Constitution. The same year that Congress approved the Bill of Rights, it expressed an egalitarian spirit in the Judiciary Act of 1789, requiring judges “solemnly [to] swear or affirm [to] administer law without respect to persons, and do equal right to the poor and to the rich.”
Nevertheless, many federal laws mandated racial discrimination. The Naturalization Act of 1790, for instance, restricted naturalized citizenship to “any alien being a free White person.” Despite the due process clause, the Fugitive Slave law of 1850 did not allow alleged fugitives in northern states to testify in trials or hearings that determined their freedom or enslavement, and the law was found to be constitutional in Ableman v. Booth (1859). In the Dred Scott ruling (1857), the Court asserted persons of African ancestry possessed “no rights which the White man was bound to respect.”
The Fourteenth Amendment, which was ratified after the Civil War, prohibited the states from denying any person the “equal protection of the laws.” This important clause was not applicable to the federal government, apparently because the framers of the amendment were focusing on racial discrimination in the southern states. When debating the amendment, nevertheless, its framers often made moral allusions to the Declaration of Independence and expressed a belief that all governments were obligated to respect a natural right to equality. But for about a hundred years, the Supreme Court interpreted the equal protection clause so narrowly that the question of a possible federal application seemed of little consequence.
Gibson v. Mississippi (1896) was probably the first case in which a Supreme Court justice unequivocally declared that the Fifth Amendment’s due process clause prohibited the federal government from practicing racial discrimination. Justice John Marshall Harlan, a former enslaver, explained the clause protected the life, liberty, and property of “all persons within the jurisdiction of the United States.” Likewise, Justice Harlan Fiske Stone’s “footnote four” in Carolene Products v. United States (1938) did not make any distinction between the federal and state governments when suggesting that the Court should use heightened scrutiny in the evaluation of legislation that discriminated against “discrete and insular minorities.”
During World War II, the Court had to decide whether discriminatory policies toward persons of Japanese ancestry violated constitutional rights. Approving a curfew in Hirabayashi v. United States (1943), Chief Justice Stone wrote for the Court that racial distinctions were “by their very nature odious to a free people whose institutions are founded upon the doctrine of equality,” and he also observed that precedents based on the equal protection clause would be “controlling” except for the dangers of espionage and sabotage. Although a 6-3 majority of the Court upheld the displacement program in Korematsu v. United States (1944), all the justices implicitly agreed that principles of due process prohibited the federal government from depriving persons of liberty simply because of their race or ethnicity. Justice Hugo Black’s majority opinion asserted that “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect,” demanding “the most rigid scrutiny.”
One member of the Court, Justice Frank Murphy wrote a dissent which articulated the concept of inverse incorporation: “Being an obvious racial discrimination, the [displacement] order deprives all those within its scope of the equal protection of the laws as guaranteed by the Fifth Amendment.”
A decade later, in Brown v. Board of Education (1954), the Court ruled that segregated schools in the southern states were incompatible with the equal protection clause of the Fourteenth Amendment. In a companion case, Bolling v. Sharpe, the justices ruled that segregated schools operated by the federal government in the nation’s capital were also unconstitutional. Unable to base the Bolling decision directly on the Fourteenth Amendment, they relied instead on a substantive due process interpretation of the Fifth Amendment. As historical precedents, Chief Justice Earl Warren referred to the earlier dicta (or statements) of justices Harlan, Stone, Black, and Murphy. In his argument, Warren utilized a broad definition of liberty, which was said to include “the full range of conduct which the individual is free to enjoy.” Finding evidence that the policy of racial segregation denied African American children of basic life opportunities, he logically concluded that the policy constituted “an arbitrary deprivation of their liberty in violation of the due process clause.”
Since the Bolling landmark, the Court has not recognized any distinctions between federal and state cases insofar as they relate to the standards of scrutiny for evaluating equal protection claims. In Rostker v. Goldberg (1981), for instance, the Court evaluated a gender classification of the federal government with an approach called “intermediate scrutiny,” the same approach used in considering gender classifications by the state governments. Moreover, in Adarand Constructors v. Peña (1995), the Court utilized the strictest level of judicial scrutiny in striking down a racial preference mandated by the federal government, just as it had earlier done in a case involving a racial preference by a city government.
Federal cases dealing with equal protection under the Fifth Amendment have been relatively rare, compared to state cases relating to alleged violations under the Fourteenth Amendment.
In 2022, in what many described as the most impactful court case involving due process in half a century, the US Supreme Court effectively overturned Roe v. Wade. This 1973 ruling affirmed a woman's right to hae an abortion in the United States. In 2021, the Supreme Court agreed to hear the case of Dobbs v. Jackson Women's Health Organization, defying expectations as it did so. The case originated in 2018 as the state legislature of Mississippi passed legislation prohibiting most abortions after 15 weeks of pregnancy. This law contradicted Roe v. Wade and was thus expected to be largely symbolic and to be overturned. The U.S. Court of Appeals for the Fifth Circuit did indeed rule against Dobbs. This prompted Mississippi to appeal to the U.S. Supreme Court.
With Justice Samuel Alito spearheading the process, on June 24, 2022, the Supreme Court announced its decision. It negated the doctrine that the U.S. Consitution protected a woman's right to an abortion. The Court then deferred to the individual states the ability to regulate the process of abortion within its borders. In practical terms, Dobbs v. Jackson Women's Health Organization ended Roe v. Wade.
Two years after its decision, fourteen states had banned nearly all abortion services. Six other states restricted abortion after six weeks of pregnancy.
"Due Process Supreme Court Cases." Justia, supreme.justia.com/cases-by-topic/due-process. Accessed 30 Sept. 2024.
Elliot, Debbie, and Sarah McCammon. "A Year after the Dobbs Abortion Ruling, the Impact Nationwide Has Been Dramatic." NPR, 23 June 2023, www.npr.org/2023/06/23/1183931379/a-year-after-the-dobbs-abortion-ruling-the-impact-nationwide-has-been-dramatic. Accessed 30 Sept. 2024.
Kantor, Jodi, and Adam Liptak. "Behind the Scenes at the Dismantling of Roe v. Wade." The New York Times, 15 Dec. 2023, www.nytimes.com/2023/12/15/us/supreme-court-dobbs-roe-abortion.html. Accessed 30 Sept. 2024.
Kekatos, Mary. "A State-by-State Breakdown of Abortion Laws 2 Years after Roe Was Overturned." ABC News, 22 June 2024, abcnews.go.com/US/state-state-breakdown-abortion-laws-2-years-after/story?id=111312220. Accessed 30 Sept. 2024.