Gitlow v. New York
A Communist helps destroy the Bill of Rights
From M'Culloch v. Maryland we see how Chief Justice John Marshall laid the foundation for an expansive view of the power of the federal government, with the concomitant reduction of the powers reserved to the states by the Tenth Amendment.
From Morrison v. Olson we see how the Founders dominating principle of separation of powers has come to be devalued almost to the point of irrelevance.
From Griswold v. Connecticut we see how an arrogant Supreme Court, worshiping at the altar of the Living Constitution, deconstructed federalism (a federal court holding unconstitutional a law enacted by the political representatives (legislature and executive) of a state), and disregarded separation of powers (a federal court holding unconstitutional a law enacted by the political representatives (legislature andexecutive) of a state).
Worse, still, than Griswold's utter disregard for federalism and separation of powers is that the tools the Court used—various distorted and mal-applied provisions of the Bill of Rights—exist as prohibitions on only the federal government ("Congress shall make no law . . . ."), having no force against the states.
But tell that to the "Living Constitutionalists," like the late Justice Brennan.
What has made it possible for them and their perverted view of the Constitution to prevail and thrive is the so-called "Incorporation Doctrine"—a judicial construct at which the Founders, federalist and anti-federalist alike, would doubtless have scoffed.
An examination of the Incorporation Doctrine begins with an undeniably valid premise: The Bill of Rights was intended by Madison who introduced it, by the Congress that approved it, and by the states that ratified it, to apply only to actions by the federal government. Indeed, the First Amendment begins by reciting that “Congress shall make no law . . . .”
Never was a political intent, or a legal statement, clearer. So much so that even those who would have it otherwise concede that in the early days of the Supreme Court of the United States it ruled squarely that the Bill of Rights was not applicable to the states.  Eminent constitutional law scholars have recognized that “[t]his holding was correct historically because the drafters of the Bill of Rights designed the amendments as a check on the new national government.”
How, then, has the Supreme Court been able to hold unconstitutional under the federal Constitution acts of the states violating such rights as free speech, protection against double jeopardy, and many other guarantees found in the federal Bill of Rights?
The answer lies in the Incorporation Doctrine and the Due Process Clause of the Fourteenth Amendment: “[N]or shall any State deprive any person of life, liberty, or property, without due process of law.”
Even though the federal Bill of Rights contains at least thirty specific rights-guarantees—one of which is the Fifth Amendment’s own Due Process Clause—in a series of cases beginning with Gitlow v. New York the Supreme Court ruled that the Fourteenth Amendment’s Due Process Clause, as the centerpiece of the “Living Constitution,” “incorporates” many of those same guarantees, thus making them applicable to state action.
Ironically, indeed fittingly, it all began with a Communist New Yorker.
Benjamin Gitlow was an interesting character. At 18, he was a Socialist. At 22, he was the first president of the Retail Clerks Union of New York, and at 26 Gitlow was elected to the New York State Assembly.
In 1919, Socialists of a more revolutionary flavor, like Gitlow and the legendary John Reed, founded the Communist Labor Party, which later became the Communist Party of the United States. Gitlow ran as theCommunist candidate for Vice President in 1924 and 1928.
Before his Quixotic quest for high political office, Gitlow spent three years in New York’s Sing Sing prison on a conviction for violating that state’s 1902 criminal anarchy law. That statute [wrongly] made it a crime to encourage the violent overthrow of the United States government.
According to the Supreme Court of the United States, Gitlow's indictment was in two counts. The first charged that the defendant had "advocated, advised and taught the duty, necessity and propriety of overthrowing and overturning organized government by force, violence and unlawful means, by certain writings therein set forth entitled ‘The Left Wing Manifesto’; the second that he had printed, published and knowingly circulated and distributed a certain paper called ‘The Revolutionary Age,’ containing the writings set forth in the first count advocating, advising and teaching the doctrine that organized government should be overthrown by force, violence and unlawful means.”
Initially, at his trial, later in two New York appellate courts, and eventually in the Supreme Court of the United States, Gitlow argued that the criminal anarchy statute as written and applied to him violated the Due Process Clause of the Fourteenth Amendment.
But not because there were any procedural (i.e. “process”) irregularities in either the law or in its use against him. No, indeed. Gitlow argued that the statute was “substantively” unconstitutional because it punished what Gitlow [rightly] characterized as "pure speech."
In effect, though not explicitly, Gitlow was invoking against state action proscribed by the Fourteenth Amendment ("due process"), the First Amendment which applied only to action by the federal government.
Both New York appellate courts held the criminal anarchy statute constitutional.
So did the Supreme Court, which thus [wrongly] upheld Gitlow’s conviction for pure speech.
Even worse, in doing so the Court made a statement that set the stage for later “incorporation” of virtually every provision of the Bill of Rights into the Fourteenth Amendment’s due process guarantee--thereby endowing that previously purely procedural amendment (“due process”) with the power to test the substantive (i.e., "rightness" or "wrongness") content of all state laws:
For present purposes we may and do assume [said the Supreme Court] that freedom of speech and of the press—which are protected by the First Amendment from abridgment by Congress—are among the fundamental personal rights and “liberties” protected by the due process clause of the Fourteenth Amendment from impairment by the States.
In other words, lurking somewhere within the Due Process Clause of the Fourteenth Amendment was First Amendment “content,” and the former’s guarantee that “no state shall deprive any person of life, liberty, or property, without due process of law” really meant that “no state shall abridge the freedom of speech.” And if a state law affecting speech was challenged on the ground that it did abridge free speech, the Supreme Court had the power to assess the substantive content of that law (e.g., punishing pure speech by anarchists) to ascertain if it passed constitutional muster by some standard or other.
That left open the question by what criteria—what litmus paper—the Court would use to decide whether, substantively, a state law was constitutional or not.
The Gitlow Court began by observing that there was no absolute right of free speech (or press) under the First Amendment:
It is a fundamental principle, long established, that the freedom of speech and of the press which is secured by the Constitution, does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom. * * * Reasonably limited . . . this freedom is an inestimable privilege in a free government; without such limitation, it might become the scourge of the republic.
Note that, according to the Court, as long ago as 1925, free speech was a mere “privilege,” subject to “limitation.”
"Limitation," OK—we get it. But then, by what standard? To what is pure speech subordinated?
The Supreme Court of the United States wasn't bashful about its answer:
That a State in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to corrupt public morals, incite to crime, or disturb the public peace, is not open to question.
Having concluded that Gitlow’s over-the-top Communist ranting was indeed “inimical to the public welfare,” the Supreme Court upheld his conviction and sentence, using some hyperbole of its own:
The State [New York] cannot reasonably be required to measure the danger from every such utterance in the nice balance of a jeweler's scale. A single revolutionary spark may kindle a fire that, smoldering for a time, may burst into a sweeping and destructive conflagration.
Even though the Supreme Court upheld the New York criminal anarchy statute, and with it Gitlow’s conviction, more important for the future of constitutional law was that the Court tested that law not by the Constitution’s Fourteenth Amendment (“[N]o state shall deprive any person of life, liberty, or property, without due process of law”), but by the First Amendment (“Congress shall make no law . . . abridging the freedom of speech . . . .”)—and that the essence of the Court’s test was whether “substantively” the statute was “inimical to the public welfare” and thus constitutionally within New York’s power to protect that public.
Justice Holmes authored a dissent for himself and Justice Brandeis.
Most interesting about that dissent is that Holmes and Brandeis shared their colleagues’ view that the Fourteenth Amendment's Due Process Clause contained First Amendment "content" which, through “incorporation” would be read into the Fourteenth.
Why, then, did they dissent?
Not because they believed New York was powerless to punish subversive speech, for they found no fault with the statute itself.
And not because they believed the Court lacked the judicial power to evaluate the substantive content of the statute, for they assumed that the Fourteenth Amendment’s Due Process Clause could substantively test the constitutional appropriateness of the criminal anarchy statute.
Holmes and Brandeis dissented because they disagreed with their colleagues only about whetherunder the facts of the case Gitlow’s speech was truly “inimical to the public welfare.” If it was, he could be sent to Sing Sing. If not, he should have been set free.
Those facts were to be assessed under the test the Court had developed in the earlier World War I free speech case of Schenck v. United States, where Schenck and others went to prison for protesting conscription. In Schenck, Holmes had written that: “[t]he question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that [the State] has a right to prevent.”
In Gitlow, Holmes and Brandeis thought not; there was, in their opinion, no “clear and present danger.”
It is said that this manifesto was more than a theory, that it was an incitement. Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker's enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us it had no chance of starting a present conflagration. If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.
Thus, Holmes and Brandeis, too, subscribed to their colleagues' belief that the Fourteenth Amendment “incorporated” the free speech guarantee of the First Amendment, and that state action allegedly violative of "due process" could be examined substantively by the judicial power of the Supreme Court in order to ascertain whether the law under attack was constitutionally acceptable. By whatever standard nine justices saw fit to apply.
As we shall see from other "Worst" cases, during the ensuing years "incorporation" of virtually all other provisions of the Bill of Rights occurred—violating federalism, separation of powers, and the appropriate role of the judiciary. And erasing the difference between explicit provisions of the Bill of Rights and the more amorphous, and merely procedural, Due Process Clause of the Fourteenth Amendment.
Barron v. Mayor and City Council of Baltimore, 32 U.S. (7 Pet.) 243 (1833).
Nowak and Rotunda, Constitutional Law (fourth edition), 332.
268 U.S. 652 (1925).