Dr. Gutzman, I just viewed your lecture on substantive due process. I have heard that Gitlow v. New York was the first instance of the incorporation doctrine being used, but it looks as if the Lochner case was the first. What is your view on this?
Lochner was a substantive due process case. The Court there claimed that the Due Process Clause of the 14th Amendment had particular substantive meaning. This is not the same as Incorporation, which is reading the Due Process Clause as making some portion of one of the first eight amendments enforceable against the states.
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