Academic

Wildenthal on the Bill of Rights, the 14th, and Originalism

By Lawrence Solum

Bryan H. Wildenthal (Thomas Jefferson School of Law) has posted Nationalizing the Bill of Rights: Revisiting the Original Understanding of the Fourteenth Amendment in 1866-67 (Ohio State Law Journal, Vol. 68, No. 6, p. 1509, 2007) on SSRN.  Here is the abstract:

For many years, the reigning view among scholars was that the Fourteenth Amendment was never understood - except by a few eccentric or confused figures - to nationalize (or incorporate) the entire Bill of Rights so as to apply it to the states. That modern, conventional, anti-incorporation view was developed primarily by Charles Fairman and Stanley Morrison starting in 1949, and defended by Raoul Berger from 1977 to 1997. The pro-incorporation view had been asserted in 1947 by Justice Hugo Black, in his famous dissent in Adamson v. California. Scholars taking a revisionist, pro-incorporation position, in response to Fairman and Morrison, include William Winslow Crosskey in the 1950s and Alfred Avins in the 1960s, among others. The pro-incorporation view was given powerful further scholarly support by Michael Kent Curtis starting in 1980, joined by Akhil Reed Amar, Richard Aynes, Earl Maltz, and Stephen Halbrook, among others, in the 1990s.

Some scholars and judges still question, or reject outright, the legitimacy of the selective incorporation doctrine by which the Supreme Court, in practical effect, by 1969, applied most of the Bill of Rights to the states. They have also questioned the total incorporation doctrine espoused by Justice Black and others. But this article demonstrates the truly shocking and inexcusable extent to which Fairman, Morrison - and especially Berger - mishandled the evidence and profoundly misunderstood the meaning of the Fourteenth Amendment. The extent of their scholarly malpractice has not been fully explored until now. Yet their works remain amazingly influential. Fairman's 1949 article has been viewed as a classic for more than half a century. It is one of the most-cited law review articles of all time. Berger's books remain widely cited and admired, especially in conservative circles.

The research presented in this article shows, surprisingly, that there is still a great deal new to say about the original understanding of the Amendment. Part I briefly reviews the doctrine of Barron v. Baltimore, the 1833 Supreme Court decision holding that the Bill of Rights did not originally apply to the states. Parts II to VI review in great depth the congressional debates over the Amendment, focusing on the crucial speeches of Rep. John A. Bingham (R-Ohio) and Sen. Jacob M. Howard (R-Mich.), the reactions of their colleagues in Congress, the contemporary press coverage, and the analysis of later generations of scholars. Part VII then reviews crucial aspects of the debates throughout the country during the state ratification process. The article analyzes primary source materials never fully discussed before - indeed, barely quoted or mentioned in earlier scholarship. These include, most notably, a New York Times editorial published two days after the Amendment was introduced in the Senate (discussed in Part VI), and an essay by Samuel Smith Nicholas, a Kentucky state judge (discussed in Part VII.B). These materials, together with other evidence, suggest that nationalizing the Bill of Rights may have been widely understood during the ratification period as a key purpose of the Fourteenth Amendment.

In addition to providing a descriptive reevaluation of the evidence, the article offers several theoretical and analytical arguments and insights. The Introduction grounds the article in the modern scholarly approach focusing on the original public meaning of constitutional provisions. Part VII.B, among other points, applies to the debates over the Amendment the insights of linguist George Lakoff on the framing of political issues. Part VII.C develops an argument about how we should weigh and evaluate the available record - and its silences - in seeking to illuminate the original understanding. Parts VIII and IX suggest how we might construe the text of the Amendment in light of the historical evidence. The article concludes that the evidence is sufficient to support the inference that the Amendment was understood to nationalize the Bill of Rights. But it concedes the uneven and incomplete nature of the surviving evidence from 1866-67, and that more work is required to explore the early understanding of the Amendment in the years after 1866-67, and to analyze the ultimate significance of all the evidence.

Highly recommended.  Given the Supreme Court's decision in Heller, the Supreme Court may soon face the question whether the "right to keep and bear arms" provides a constitutional limitation on the states.  Given the novelty of the question, it would be open to the Court to rely (as the exclusive or alternative basis for incorporation) on the "privileges or immunities" clause of the 14th.  This article is in my opinion, the single-best starting point for an up-to-date overview of the debate, and it constitutes an important and persuasive contribution in its own right.

Full post as published by Legal Theory Blog on July 10, 2008 (boomark / email).