First Amendment Lochnerism & the Origins of the Incorporation Doctrine

40 Pages Posted: 6 Apr 2021

Date Written: October 26, 2020


The 20th century emergence of the incorporation doctrine is regarded as a critical development in constitutional law, but while issues related to the doctrine’s justification have been studied and debated for more than fifty years, the causes and mechanics of its advent have received relatively little academic attention. This Essay, part of a symposium on Judge Jeffrey Sutton’s recent book about state constitutional law, examines the doctrinal origins of incorporation, in an effort to help uncover why the incorporation doctrine emerged when it did and the way it did. It concludes that, for these purposes, incorporation is best understood as having three basic components, of which First Amendment incorporation predominated. It goes on to show how First Amendment incorporation drew in important ways from existing doctrine, including important strands of “Lochnerian” jurisprudence, and was structured in a way that in turn facilitated subsequent incorporation of criminal procedure protections. Finally, it notes that in its critical beginning moments, incorporation decisions did not consider, much less adjudicate, the kinds of issues that are today central to discussions of judicial federalism.

Suggested Citation

Stern, James, First Amendment Lochnerism & the Origins of the Incorporation Doctrine (October 26, 2020). University of Illinois Law Review, Vol. 2020, No. 5, 1501, Available at SSRN:

James Stern (Contact Author)

William & Mary Law School ( email )

613 S. Henry Street
Williamsburg, VA 23185
United States
757-221-1341 (Phone)


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