I am doing my paper on the evolution in Supreme Court jurisprudence that allowed for the shift from Hurtado v. California in 1884, wherein it was decided that the Fourteenth Amendment did not encompass the Bill of Rights, to the Taft court of the 1920's, which regularly held that the Fourteenth Amendment did in fact encompass (at least some of) these same rights. In the reading that I've done so far, it seems that the Taft court operated at the zenith of the substantive due process era, and the amount of philosophical hair-splitting that occurred in many of their holdings (and dissents, for that matter) is reflective of this fact. The same court that upheld a billiard parlor's right to ban aliens would also find a state law banning the teaching of German (Meyer v. Nebraska, 1923) to be unreasonable. In another case, Gitlow v. New York (1923), the Taft court upheld a lower-court decision banning the advocacy of violent government overthrow under a state criminal anarchy law, while simultaneously acknowledging for the first time that the First Amendment was indeed protected under the auspices of the Fourteenth.
I see a pattern where the Taft court seemed focused on protecting the individual, and perhaps more importantly, individual private property ownership, against encroachment by the states. To this end, the court would strike down a state law in Arizona established to protect the rights of picketing workers against legal injunction. The case, Truax v. Corrigan (1921), would pit the owner of the business against disruptive, striking employees. Tellingly, the court chose to view the business owner's right to own property as a fundamental one protected under the aegis of the Bill of Rights, and thus, necessarily, under the Fourteenth Amendment's due process clause as well. While this court may have been no friend to social reform (and indeed, it was not), there were a few anomalies, most notably Nixon v. Herndon (1927), that were not so easily explained. In this case, the court struck down a Texas statute forbidding African-Americans from participating in the Democratic state primary, on the basis that the Fourteenth Amendment clearly forbade such actions by the states.
Now, as to the question of why this evolution occurred, well, that's why I'm writing this. I'm still not really sure.
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Really exciting topic! I have found this topic to be really confusing, with all of the reversals in just of matter of years. Personally, I would like to know more about the reasoning behind the Waite court's rejection of the Fourteenth Amendment and state laws violating the Bill of Rights. Poor John Marshall Harlan, he would have found his home in the Taft court!
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