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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.

A Response to this article by Professor George C. Thomas III will appear in the same issue of the Ohio State Law Journal (available at http://ssrn.com/abstract=1005685). Professor Wildenthal's Reply to Professor Thomas's Response will also appear in that issue (available at http://ssrn.com/abstract=1019308).

Fourteenth Amendment, Bill of Rights, incorporation theory, originalism, Reconstruction, John Bingham, Jacob Howard, Charles Fairman, Raoul Berger, Samuel Nicholas

Abstract:
This article, analyzing debates in Congress and Supreme Court opinions and briefs between 1868 and 1880, proposes to overturn more than a century of conventional wisdom regarding the early understanding on whether the Fourteenth Amendment "incorporates" the Bill of Rights and applies it to the states. The prevailing orthodox view is that Justice Miller's 5-4 majority opinion in the Slaughter-House Cases (1873) rejected incorporation and gutted the Fourteenth Amendment Privileges and Immunities Clause. But in books published in 1953 and 1980, William Winslow Crosskey and John Hart Ely suggested that both the majority and dissenting justices in Slaughter-House may in fact have supported incorporation. Robert Palmer developed this idea in a 1984 article, as did Kevin Newsom in a 2000 article published shortly before the present article.

This article builds in part on Crosskey, Ely, Palmer, and Newsom, and argues that total incorporation via the Privileges and Immunities Clause may indeed have been a minimum view (a potential compromise) accepted by all the justices in Slaughter-House. The article, however, has a considerably broader scope. It analyzes key source materials only lightly explored (if at all) by earlier scholars, most notably critical debates in Congress in 1873-74 and 1876. It disagrees with Newsom's analysis of post-Slaughter-House cases, and is the first work to consider in depth, in this regard, the contemporary briefs and arguments before the Court. That resource has rarely been explored in previous scholarship in this area, and produces surprising findings, including that incorporation was favorably discussed (and virtually unchallenged by any party) in the Slaughter-House briefs, and that the issue was not even properly before the Court in United States v. Cruikshank and Walker v. Sauvinet, key 1876 decisions which undermined the theory.

The 1873-74 debates in Congress reveal that the Slaughter-House Cases were read in an incorporationist light by lawyer-politicians across the political spectrum - including, indeed especially, by the most conservative, anti-Reconstruction Southern Democrats. Indeed, the notion that the Fourteenth Amendment at least applies all textual Bill of Rights guarantees to the states appears to have briefly emerged as a baseline consensus during the early 1870s. But in a series of cases in the mid-to-late 1870s - including Edwards v. Elliott (1874), Cruikshank and Walker in 1876, and additional decisions in 1878 and 1880 - the Supreme Court seemed to abandon the incorporation theory. This article explores the previously unrecognized degree of discontinuity, poor or nonexistent reasoning, and outright procedural impropriety in these cases. The article also speculates about what might have caused the incorporation compromise to become lost, and concludes by suggesting that its historical insights should place the incorporation theory on a stronger foundation in the modern Court, which signalled in Saenz v. Roe (1999) a willingness to reexamine the Fourteenth Amendment Privileges and Immunities Clause.

A sequel to this article, "The Road to Twining: Reassessing the Disincorporation of the Bill of Rights," 61 Ohio St. L.J. 1457 (2000) (available at http://ssrn.com/abstract=229443), pursues the treatment of the incorporation theory by the Supreme Court from 1880 to 1908. A forthcoming "prequel" article revisits the original understanding on incorporation in 1866-67, and will be followed by additional articles exploring related historical issues, all to be eventually combined into a book. See "Nationalizing the Bill of Rights: Revisiting the Original Understanding of the Fourteenth Amendment in 1866-67," 68 Ohio St. L.J., No. 6 (forthcoming 2007) (available at http://ssrn.com/abstract=963487).

Fourteenth Amendment, Bill of Rights, incorporation theory, constitutional law, individual rights, Charles Fairman, Stanley Morrison, Raoul Berger, Slaughter-House Cases, Cruikshank, Walker v. Sauvinet

Abstract:
In 2004 the National Labor Relations Board, over a powerful dissent, overruled its 1976 precedent and effectively rewrote the National Labor Relations Act of 1935 to apply, for the first time, to Indian tribal government on-reservation employment. The D.C. Circuit, in an opinion by President Bush's recent appointee Judge Janice Rogers Brown, upheld this decision in San Manuel Band of Serrano Mission Indians v. NLRB (2007). The litigation arose in regard to the San Manuel Band's Casino located on its reservation, and a labor dispute involving its employees.

This article argues, in part, that the Board and D.C. Circuit decisions in San Manuel were egregiously erroneous; that they violated the Indian law canons; that they ignored, contradicted, or misconstrued numerous Supreme Court precedents; and that only Congress, after careful consideration of the policy issues involved, has any authority to make such a dramatic change in federal labor law as applied to Indian country. But the scope and implications of the article go much further. The San Manuel decisions are profoundly important for what they portend about the future of tribal sovereignty and Indian law generally. They show how lower courts and administrative agencies may sometimes drastically revise fundamental principles affecting entire fields of law, without the guidance or approval of Congress, and in defiance of clear teachings of the Supreme Court.

San Manuel is the culmination of an approach, often referred to as the Tuscarora-Coeur d'Alene doctrine, that lower courts have been building for more than twenty years on the basis of a stray statement in the Supreme Court's 1960 decision in Federal Power Commission v. Tuscarora Indian Nation (one of the most reviled cases of the now-discredited Termination Era of Indian law, from 1943 to 1961). This doctrine, which the Supreme Court has never approved (and has indeed implicitly rejected many times), threatens to radically undermine the canons guiding the entire field of Indian law. This lower-court doctrine has already affected the interpretation of a wide range of so-called generally applicable federal laws. Yet, as this article shows in a wide-ranging examination of the Indian law canons, the Ninth Circuit Coeur d'Alene decision lending its name to this doctrine was decided the same year (1985) that the Supreme curtailed and laid to rest its own troubling statement in Tuscarora that was its seed. During the years since, the Supreme Court has generally adhered to the canons, while lower courts have proceeded to dismantle them in case after case, San Manuel being the latest and most important.

The final part of the article draws upon the insights of constitutional case law on federal-state relations, most notably the Supreme Court's 1985 decision in Garcia v. SAMTA. The article argues that Indian nations deserve the same freedom as states to experiment with government programs that some may disparage as non-"traditional." The taxonomy adopted by the Board and the D.C. Circuit in San Manuel artificially distinguishes between approved ("traditional" or "governmental") and disapproved ("commercial") functions. This makes no sense, contradicts Congress's express policy choices, defies the Supreme Court's teachings in Garcia and related cases, and is patronizing to Indian tribes.

A sequel to this article analyzes in more depth the origins, doctrinal development, and possible future of the Ninth Circuit Coeur d'Alene decision. See Bryan H. Wildenthal, "How the Ninth Circuit Overruled a Century of Supreme Court Indian Jurisprudence---And Has So Far Gotten Away With It," 2008 Michigan State Law Review, No. 2 (forthcoming 2008) (http://ssrn.com/abstract=1099683).

Indian, tribal, Native American, sovereignty, labor, federalism, separation of powers, canons of construction

Abstract:
Scholars have studied and debated for more than a century whether the Fourteenth Amendment was originally understood to "incorporate" or apply the Bill of Rights to the states. Six late-19th-century Supreme Court justices embraced the incorporation doctrine at one time or another, most notably the first Justice John Marshall Harlan, though it seemed to be definitively rejected by the Court by 1908. Justice Hugo Black came within a single vote of judicially reviving the doctrine in Adamson v. California (1947). The Court, by 1969, largely ended up agreeing with Black in practical effect (though not in strict theory). But a ferocious scholarly counterattack starting in 1949, led by Charles Fairman and Stanley Morrison (followed by a renewed wave of scholarship launched by Raoul Berger in 1977), persuaded most academics for the next 30 years that the theory lacked historical support. A revisionist academic response starting around 1980 (led by Michael Kent Curtis) has not yet entirely overcome that modern conventional (Fairman-Berger) view.

This paper is a draft manuscript of the Introduction and Chapters 1 and 2 of a book project aiming at a comprehensive, synoptic overview of the incorporation theory, its original support (or lack thereof), and its treatment by later generations of judges, politicians, scholars, and commentators. This is surely one of the most important issues in American legal history and constitutional law. Broadly speaking, the book will agree with the revisionist view that the theory enjoys far more support than conventionalists have claimed. But the book will also concede that the theory has curious weaknesses and gaps. It is a strange and complex story. The author's research has uncovered a wealth of materials never before (or very minimally) analyzed, pointing both ways on the issue. Even some episodes and materials seemingly thoroughly raked over in prior scholarship have yielded up surprising new insights.

This partial draft book manuscript will remain permanently archived on the Internet at this location, in the form uploaded in May 2006. If citing or quoting this particular paper for publication, please cite as: Bryan H. Wildenthal, "Nationalizing the Bill of Rights: The Rise, Fall, and Rise of the Fourteenth Amendment Incorporation Doctrine (Book Manuscript, Introduction and Chapters 1 and 2, May 2006 Draft)" (available at http://ssrn.com/abstract=905621).

The Introduction provides a general overview of the issue which may be especially useful for non-lawyers and those lawyers less familiar with the incorporation debate. Chapter 1 collects some useful information and case citations about the history of the debate. Chapter 2 reviews the original understanding in 1866-67. But please note that an article revising and superseding Chapter 2 has since been published. See Wildenthal, "Nationalizing the Bill of Rights: Revisiting the Original Understanding of the Fourteenth Amendment in 1866-67," 68 Ohio St. L.J. 1509, 1511-12 (2007) (available at http://ssrn.com/abstract=963487). Earlier articles by the same author on similar subjects include, e.g., "The Lost Compromise," 61 Ohio St L.J. 1051 (2000) (available at http://ssrn.com/abstract=229228), and "The Road to Twining," 61 Ohio St. L.J. 1457 (2000) (available at http://ssrn.com/abstract=229443). These and other forthcoming articles will eventually be folded into the book project.

Fourteenth Amendment, Reconstruction, Bill of Rights, incorporation theory, John Bingham, Jacob Howard, Charles Fairman, Stanley Morrison, Raoul Berger, Michael Kent Curtis

Abstract:
This Article is part of a Symposium, "The Fourteenth Amendment and the Bill of Rights: What Have We Learned? Why Does It Matter?" (University of San Diego School of Law, Center for the Study of Constitutional Originalism, Jan. 7, 2009). The Symposium topic is the so-called "incorporation debate": whether and to what extent the Bill of Rights (originally applicable only to the federal government) has properly been "incorporated," "enforced," "applied," or "nationalized" (pick your terminology) against the states via the Fourteenth Amendment. Everyone agrees that such a goal was embraced by some leading Reconstruction Republicans, but scholars continue to debate whether (or how broadly) the idea was shared in Congress, out in the states during the ratification process, or among the bench, bar, press, and public generally. The issue has become newly current since the Supreme Court, in the wake of District of Columbia v. Heller, 128 S. Ct. 2783 (2008), may have to decide whether to apply to the states the Second Amendment right to bear arms.

The particular focus of the Article is on the scholarly and press commentary on the Amendment from 1867 up to (but not including) the Slaughter-House Cases of April 1873. How much weight should be accorded to such commentary (most of it post-ratification)? Does it support or undermine the incorporation thesis? The writers considered include well-known legal scholars of the era such as Cooley, Bishop, Wharton, Pomeroy, Farrar, and Paschal, and also some less-well-known but arguably significant figures, such as Samuel Smith Nicholas of Kentucky. Articles in "The Nation," then a leading Republican-oriented newsmagazine (founded in 1865), and some other news articles, are also considered. While the Article seeks to be thorough in assessing relevant scholarly discussions published in book or law review form during the period covered, it does not pretend to have exhaustively surveyed all the archival newspaper or magazine materials that have recently become more readily available. More work remains to be done in future articles.

This Article also explores (mainly in connection with Pomeroy) the extent to which states in 1868 already guaranteed grand jury indictment as a matter of state constitutional right (or at least used it as a matter of state law). The long-prevailing view has been that the grand jury represents a severe case of variance between the federal Bill of Rights and state practices in 1868, thus supposedly undercutting the idea that enforcing the Bill of Rights against the states could have been widely embraced or understood as a consequence of the Fourteenth Amendment. But this Article, based on more thorough research than has ever before been published on the issue, suggests that view is wrong. It turns out that as many as 86% of the states (with 89% of the population) largely complied with the grand jury procedure in 1868.

The Article concludes that, on the whole, the commentary during this period supports the thesis that nationalizing the Bill of Rights was part of the original public meaning of the Amendment, though the evidence is certainly mixed and others may draw different conclusions. The Article offers some cautious and tentative thoughts about the broader theory of originalism, but generally remains focused on the historical details. The Article is the fourth major installment of the author's on-going project exploring the historical relationship between the Fourteenth Amendment and the Bill of Rights. See, e.g., the third installment, Bryan H. Wildenthal, "Nationalizing the Bill of Rights: Revisiting the Original Understanding of the Fourteenth Amendment in 1866-67," 68 Ohio St. L.J. 1509 (2007) (http://ssrn.com/abstract=963487).

Other articles in this Symposium (the participants include Michael Kent Curtis, Richard Aynes, Donald Dripps, Yale Kamisar, Kurt Lash, George Thomas, Lawrence Rosenthal, Carolyn Ramsey, and Lawrence Solum) deal with various related historical and theoretical issues. This Article offers a number of responses to the other articles, all of which will be published in Volume 18 of the University of San Diego's Journal of Contemporary Legal Issues. The other articles posted so far on SSRN include: Michael Kent Curtis, "The Bill of Rights and the States: An Overview From One Perspective" (http://ssrn.com/abstract=1334687); Kurt T. Lash, "Beyond Incorporation" (http://ssrn.com/abstract=1323431); Lawrence Rosenthal, "The New Originalism Meets the Fourteenth Amendment: Original Public Meaning and the Problem of Incorporation" (http://ssrn.com/abstract=1358473); Lawrence B. Solum, "Incorporation and Originalist Theory" (http://ssrn.com/abstract=1346453); and George C. Thomas III, "Newspapers and the Fourteenth Amendment: What Did the American Public Know About Section 1?" (http://ssrn.com/abstract=1392961).

Fourteenth Amendment, Bill of Rights, Second Amendment, Fifth Amendment, right to bear arms, grand jury, self-incrimination, incorporation doctrine, Cooley, Bishop, Wharton, Pomeroy, Farrar, Paschal, Nicholas, Fairman, Berger, Crosskey, Reconstruction, originalism, original meaning, textualism

Abstract:
This article - a sequel to "The Lost Compromise," 61 Ohio St. L.J. 1051 (2000) (available at http://ssrn.com/abstract=229228) - analyzes the early understanding in the Supreme Court, from 1880 to 1908, regarding "incorporation" of the Bill of Rights in the Fourteenth Amendment. The article provides a fresh and comprehensive analysis of all the relevant cases, with special attention to the briefs and arguments presented to the Court, a resource previously underused by scholars. It demonstrates that an incorporationist reading of the Slaughter-House Cases (1873) - however unorthodox that may seem to modern legal thinkers - reverberated in the first extensive pro-incorporation argument presented to the Court, by John Randolph Tucker in Spies v. Illinois (1887). That incorporationist reading of Slaughter-House may also have played a role in the dissents by three Justices who embraced the incorporation theory in O'Neil v. Vermont (1892).

This article details the treatment of that theory up through the Court's historic decision in Twining v. New Jersey (1908), which embraced a theory of total disincorporation. It shows how this early case law has been profoundly misunderstood by earlier scholars, notably by Professor Stanley Morrison in a 1949 Stanford Law Review article (the companion to Professor Charles Fairman's famous analysis of the original understanding of the Fourteenth Amendment). In particular, it defends the first Justice John Marshall Harlan's historic and critical role in these cases.

The article concludes by surveying the Court's modern treatment of the incorporation theory, and by noting the recent revival of the Fourteenth Amendment Privileges and Immunities Clause in Saenz v. Roe (1999). It argues that the evidence analyzed should place the incorporation theory on a stronger foundation as the Court faces a new century.

A forthcoming "prequel" article by Professor Wildenthal discusses the original understanding with regard to incorporation in 1866-67. Additional articles by the same author are forthcoming on this subject, and will eventually be combined into a book. See "Nationalizing the Bill of Rights: Revisiting the Original Understanding of the Fourteenth Amendment in 1866-67," 68 Ohio St. L.J., No. 6 (forthcoming 2007) (available at http://ssrn.com/abstract=963487).

Fourteenth Amendment, Bill of Rights, incorporation theory, constitutional law, individual rights, Twining v. New Jersey, John Marshall Harlan (elder)

Abstract:
What survives of American Indian tribal sovereignty rests largely on decisions of the U.S. Supreme Court, which rely in turn on constitutional principles, various Indian treaties, federal statutes, and what amounts to judge-made federal common law. But the Court has historically been an enemy as much as an ally of Indian sovereignty, and today it seems intent on undermining what remains of the basic principles of American Indian law. In a remarkable reversal, the political branches of the federal and even some state governments are now (sometimes) more friendly than federal and state courts to Indian tribal interests.

This article is part of a symposium marking the centennial of the Court's decision in Lone Wolf v. Hitchcock (1903), often called the "Dred Scott of Indian law." Lone Wolf upheld Congress's plenary power to seize Native American lands and abrogate Indian treaties. Later decisions qualified Lone Wolf's extreme abdication of judicial scrutiny and signalled a partial and tentative judicial defense of tribal rights. Yet the Lone Wolf mentality survives and has even undergone a revival on the modern Court, largely at the instigation of Chief Justice Rehnquist.

The article begins by holding up as examples three cases decided in 1999, by the U.S. Supreme Court, the Navajo Nation Supreme Court, and the California Supreme Court. The first two reaffirmed Indian sovereignty and treaty rights. The California court, dealing with an Indian casino issue, went against tribal interests over a strong dissent, but the decision quickly boomeranged as the people of California overruled their judges to allow vastly expanded gaming on Indian lands.

The article then goes back in time to review Lone Wolf and its progeny, pointing out how even the Warren Court, as late as 1955, outdid Lone Wolf in showing disregard for Indian property rights under the Constitution. The article surveys several key cases after 1955. Some of these countered the Lone Wolf mentality, but they also reveal Rehnquist's growing influence. The Court in 1999, for example, reaffirmed Indian treaty rights in a 5-4 decision barely noticed except by Indian law specialists. But Rehnquist's dissent, among other startling moves, sought to resurrect an anti-Indian rule of treaty interpretation so dated and extreme it was rejected in 1905 by the same Court that decided Lone Wolf. Instead of construing relevant law in favor of Indian treaty rights, as the Court has at least purported to do since long before Lone Wolf, Rehnquist strained to uphold the legality of an Indian removal order dating from 1850.

The article closes by discussing two cases decided in 2001 (one unanimous and one over a notably weak dissent) in which Rehnquist wrote or joined the Court's opinion. Both cut back Indian sovereignty in terms suggesting a triumphal revival of the Lone Wolf mentality in the new millennium, and both suggest that this revival faces little effective opposition on the Court.

American Indian, Native American, indigenous, tribal sovereignty, treaty rights, Indian gaming, Indian casinos, race, ethnicity, identity, culutre, genocide, constitutional law, legal history, Supreme Court, California Supreme Court, Navajo Nation

Abstract:
A three-judge panel of the Ninth Circuit U.S. Court of Appeals, in Donovan v. Coeur d'Alene Tribal Farm (1985) (Coeur d'Alene), applied the Occupational Safety and Health Act (OSHA) to tribal government employment, despite a total absence of statutory language or evidence of congressional intent supporting such an intrusion on tribal sovereignty. This Coeur d'Alene decision has emerged as a remarkably influential precedent over the last quarter century. Yet the Supreme Court has never endorsed it, and has indeed repeatedly rejected its fundamental premises. The Ninth Circuit claimed to find support for its approach in a passing statement in a 1960 Supreme Court opinion, Federal Power Commission v. Tuscarora Indian Nation, to the effect that there is a presumption that "a general [federal] statute in terms applying to all persons includes Indians and their property interests." Yet Tuscarora has long been viewed as a discarded relic of a now-discredited era of American Indian law.

Coeur d'Alene set forth three elements (so-called "exceptions" to Tuscarora's alleged "rule") under which a general federal law "silent on the issue of applicability to Indian tribes will NOT apply to them" ONLY: "(1) [if] the law touches exclusive rights of self-governance in purely intramural matters; (2) [if] the application of the law to the tribe would abrogate rights guaranteed by Indian treaties; or (3) [if] there is proof by legislative history or some other means that Congress intended [the law] not to apply to Indians on their reservations...." By contrast, "longstanding principles" of American Indian law known as the "canons of construction" require, in relevant part, that "(1) ambiguities in a federal statute must be resolved in favor of Indians, and (2) a clear expression of Congressional intent is necessary before a court may construe a federal statute so as to impair tribal sovereignty."

The Indian law canons thus embody a presumption that federal laws should not be construed to limit tribal sovereignty or tribal rights unless Congress clearly, intentionally, and unambiguously chooses to do so: a presumption diametrically opposed to the Coeur d'Alene approach. Compare, for example, the third stated element of Coeur d'Alene, above, with the second quoted Indian law canon. While Coeur d'Alene's three elements are presented as "exceptions" (thus supposedly moderating the Tuscarora "rule"), in reality they operate as a single unified doctrine profoundly subversive of tribal sovereignty and the Indian law canons of construction. This is especially true of Coeur d'Alene's so-called "treaty exception."

Part I of this article summarizes why Coeur d'Alene is such a strange and paradoxical opinion. Part II discusses its remarkable influence. Part III lambastes its demonstrable wrongness. In conclusion, the article considers what might explain this phenomenon and where we may be headed. There are several striking aspects to Coeur d'Alene. First is how short the opinion is, a mere four pages from beginning to end. Second is the remarkable prestige that Coeur d'Alene has enjoyed as a lower court decision. Its doctrine has generally been endorsed by the Second, Seventh, Eighth, Eleventh, and D.C. Circuits, in addition to the Ninth Circuit. Only the Tenth Circuit has offered some wavering resistance. Coeur d'Alene has received prominent and respectful treatment in leading scholarly treatises on American Indian law. Third, Coeur d'Alene was just wrong. It flagrantly misconstrued and outright defied the governing precedents of the Supreme Court. And Supreme Court cases handed down since 1985 have only further underscored its egregious error.

Finally, Coeur d'Alene is striking because it was decided by the Ninth Circuit, the Rodney Dangerfield of federal courts. The Ninth Circuit just does not get much respect, especially from the Supreme Court in recent years. Headquartered in San Francisco on the popularly dubbed "Left Coast" of the United States, it is regarded by much of the legal community as being fundamentally out of step and out of favor with the increasing conservatism of the nation's highest court. In any other area of law, the idea that the Ninth Circuit could succeed in spearheading a major shift in legal doctrine, in flagrant defiance of the Supreme Court, and get away with it for almost a quarter-century now, would be a joke. But that is what has, in effect, happened with Coeur d'Alene.

This article grows out of a 2007 article by the same author dealing with the extension of the National Labor Relations Act (NLRA) to cover the on-reservation employees of American Indian tribes. See Wildenthal, "Federal Labor Law, Indian Sovereignty, and the Canons of Construction," 86 Oregon L. Rev. 413 (2007) (available at http://ssrn.com/abstract=970590). That application of the NLRA in derogation of tribal sovereignty was accomplished by the administrative and judicial fiat of the National Labor Relations Board and the D.C. Circuit, in the San Manuel cases. It has never been approved by Congress or the Supreme Court. Indeed, it is contrary to Supreme Court precedents and statutory policy choices by Congress that have molded the field of American Indian law for the past century. And it was justified in primary and effective reliance on the Ninth Circuit's Coeur d'Alene doctrine.

American Indian law, tribal sovereignty, Native American, Indian Nations, Indian tribes, Ninth Circuit, federal labor law

Abstract:
This article replies to the Response offered by Professor George C. Thomas III to Professor Wildenthal's lead article, Nationalizing the Bill of Rights: Revisiting the Original Understanding of the Fourteenth Amendment in 1866-67, 68 Ohio State Law Journal, No. 6 (forthcoming 2007) (available at http://ssrn.com/abstract=963487). See Thomas, The Riddle of the Fourteenth Amendment: A Response to Professor Wildenthal, 68 Ohio State Law Journal, No. 6 (forthcoming 2007) (available at http://ssrn.com/abstract=1005685).

Wildenthal's lead article offers a fresh analysis, building upon extensive prior work by other scholars (including Thomas, in an important 2001 article), of the evidence regarding whether the Fourteenth Amendment was originally understood to incorporate and apply the Bill of Rights to the states. The lead article concludes that the evidence is sufficient to support that inference. Thomas's Response agrees in part with the analytical approach of the lead article, but disagrees with its conclusions in several important respects.

This Reply offers a concise rejoinder to Thomas's thoughtful arguments in the Response. The Reply points out the common ground they share, and seeks to clarify the extent and nature of their disagreements, so as to facilitate further study and debate.

Fourteenth Amendment, Bill of Rights, originalism, incorporation theory, George Thomas

Abstract:
Mental health professionals have researched the effects of the adversary trial process on child victim-witnesses in sexual abuse trials. Concern about the psychological trauma related to giving trial testimony, and the damage it may do to the truth-seeking function of the trial itself, have motivated the vast majority of the states to establish special procedures for accommodating child witnesses in such cases. States have also shown great interest in expanding the traditional scope of admissible hearsay in order to use out-of-court statements by child victims. The typical effect of the procedures employed at trial has been to limit, or eliminate outright, the defendant's ability to visually confront the complaining witness. The inevitable collision between such innovations and the Sixth Amendment, which provides that in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him, produced four important, and deeply divided, Supreme Court decisions in the years leading up to the publication of this article: Kentucky v. Stincer (1987), Coy v. Iowa (1988), Idaho v. Wright (1990), and Maryland v. Craig (1990).

This article examines and critiques the Supreme Court's response to these issues by focusing on the interpretive approach of Justice Antonin Scalia. Scalia was not only a pivotal actor in the Court's resolution of these four cases. He articulated - both in Coy, where he wrote the opinion of the Court, and in Craig, where he delivered a powerful dissent joined by three other Justices - a starkly textualist vision of the Constitution, the like of which has not been seen since the heyday of Justice Hugo Black. The tensions and contradictions of Stincer, Coy, and Craig, each of which dealt with restrictions on confrontation with witnesses testifying at trial or trial-related proceedings, provide the primary grist for Parts II and III of the article. Part IV discusses Wright, a hearsay case. Part V explores the implications of Justice Scalia's and the Court's interpretive approaches in this difficult area for constitutional criminal procedure.

constitutional law, textualism, interpretivism, constitutional theory, originalism, antonin scalia, criminal procedure, confrontation, hearsay, child abuse trials, child sexual abuse, Sixth Amendment

Abstract:
This article deals not with the political and legal debate over gay marriage (civil same-sex marriage) as such, but rather with certain legal issues raised by marriage as a cultural and linguistic concept when applied to gay or lesbian couples. The article begins with a comprehensive overview of Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997), which upheld then-Georgia State Attorney General Michael Bowers's revocation of Robin Shahar's employment as a staff attorney in his state office, because of her religious marriage ceremony with her female partner. The article then analyzes the case's free speech implications, an issue not pressed by Shahar but arguably central to the case. It argues that a ceremony like Shahar's, while not recognized as a legal marriage, is, among other things, a constitutionally protected speech act. It explores the legal, cultural, and linguistic struggle over the word "marriage," and the intriguing dichotomy and overlap between the public and private character of such speech, as with all speech regarding sexual orientation and gay identity. In the process, the article criticizes, and proposes some refinements of, the law governing public employee speech rights. The article concludes by analyzing the importance of the Shahar case in particular, and free speech rights in general, to legal strategies in defense of the liberty and integrity of gay people.

marriage, same-sex marriage, gay marriage, lesbian marriage, religious marriage, civil marriage, gay and lesbian rights, free speech, freedom of religion

Abstract:
State discrimination against out-of-staters falls into two conceptually distinct categories. On the one hand, a state might treat its own residents more favorably than residents of other states who are temporarily within the state's jurisdiction. The Court has generally viewed this kind of resident-nonresident discrimination as subject to the Privileges and Immunities Clause of Article IV. The Commerce Clause has also been invoked against such discrimination, in the context of commercial discrimination against nonresident buyers or sellers. On the other hand, a state might discriminate among those currently claiming residence in the state, on the basis of how recently they moved into the state or on their motives for moving into the state. This type of policy divides residents into two classes: those accepted as bona fide, established residents, and those disfavored as latecomers with inadequate ties or attachment to the state, suspect motives for immigrating, or perhaps both. Because the latecomers have, by definition, recently exercised the right to travel into the state discriminating against them, the Court has tended to view such discrimination as impinging on that right, thereby triggering strict scrutiny under the Equal Protection Clause of the Fourteenth Amendment. This has been the basis for the Court's development of the so-called right to travel strand of equal protection analysis.

Regardless of whether a state discriminates against nonresidents or recent residents, a survey of recent Supreme Court cases, as discussed in Part I of this Note, confirms that invalidation is the rule for such state laws. The Court's 1984-85 Term yielded four cases striking down different parochial state policies. One was decided under the Article IV Privileges and Immunities Clause, one was a Commerce Clause case in equal protection clothing, one was a right-to-travel case, and one was just plain confusing.

Part II of this Note surveys the constitutional doctrine relating to state parochial discrimination and discusses two broad areas where the Article IV Privileges and Immunities Clause has already been used or proposed for use as the constitutional source for a new, clarified doctrine. Part III focuses on the goals and problems of the right-to-travel doctrine and the possibility of analyzing those cases under a Privileges and Immunities Clause rationale. Part IV concludes that the Privileges and Immunities Clause, freed of cramped and anachronistic interpretations, should be the basis for a new, more stringent test for scrutinizing state parochial legislation, a test more clearly tied to the language and structure of the Constitution and better suited to carry out its guarantees.

state parochialism, interstate discrimination, travel, interstate travel, right to travel, privileges and immunities clause, commerce clause, equal protection clause, constitutional law

Abstract:
Professor Wildenthal reviews Professor Pamela Brandwein's book, Reconstructing Reconstruction: The Supreme Court and the Production of Historical Truth (Duke University Press, 1999). The review praises the perceptive and groundbreaking contribution that Brandwein, a sociologist, has made to the understanding of several crucially important episodes of American constitutional history. Brandwein primarily focuses on the long-running debate over the meaning of the Fourteenth Amendment, including whether it is properly construed to incorporate or apply the Bill of Rights to the states.

Fourteenth Amendment, Bill of Rights, Civil War, slavery, Reconstruction, Thirteenth Amendment, voting rights, apportionment, Charles Fairman, William Winslow Crosskey, Pamela Brandwein

Abstract:
This essay discusses, in a slightly humorous vein, the author's research and development of his article, "The Lost Compromise," 61 Ohio St. L.J. 1051 (2000) (available at http://ssrn.com/abstract=229228), which challenges the conventional, orthodox view that the Supreme Court in the Slaughter-House Cases (1873) intentionally rejected the theory that the Fourteenth Amendment "incorporates" and applies the Bill of Rights to the states.

The essay argues that Slaughter-House's "bad rep" is unjustified. Rather then being a travesty in which the Court judicially repealed the Fourteenth Amendment Privileges and Immunities Clause, the decision was a tragedy of failed promise. Slaughter-House reflected a moderately progressive compromise view of the Amendment. It allowed ample leeway for appropriate governmental regulation of economic, social, and health matters, while leaving the door open to - and arguably endorsing - the application of the Bill of Rights to the states. But the decision's progressive promise was betrayed by later Supreme Court cases that disincorporated the Bill of Rights, and - as in Lochner v. New York (1905) - perverted the Amendment into a weapon to strike down progressive economic and social legislation.

The author has discussed related issues regarding the Fourteenth Amendment and the Bill of Rights in, e.g., "The Road to Twining," 61 Ohio St. L.J. 1457 (2000) (available at http://ssrn.com/abstract=229443), and "Nationalizing the Bill of Rights: Revisiting the Original Understanding of the Fourteenth Amendment in 1866-67," 68 Ohio St. L.J., No. 6 (forthcoming 2007) (available at http://ssrn.com/abstract=963487).

Fourteenth Amendment, Bill of Rights, incorporation theory, constitutional law, individual rights, Slaughter-House Cases, Lochner v. New York

Abstract:
This essay offers a reflective overview of the Supreme Court's federalism cases from National League of Cities v. Usery (1976) to that decision's reversal just nine years later in Garcia v. San Antonio Metropolitan Transit Authority (1985). These cases illuminate the rise and fall of a constitutional doctrine and the intellectual evolution of the Justice, Harry A. Blackmun, who cast the crucial deciding vote in this field. Most intriguingly, they illustrate the collision, in an unusual context, of the different philosophies of judicial decisionmaking which have vied for supremacy on the modern Court.

The essay begins with an overview of the contradictory ideological labels applied to judicial behavior, moves directly to an analysis of the multi-faceted character of the Garcia decision, devotes the bulk of the discussion to tracing how Garcia grew out of the theoretical and practical tensions inherent in National League of Cities and its progeny, and concludes with a brief reflection on Garcia's philosophical significance and its vindication in the political process to which it paid homage.

federalism, state sovereignty, state autonomy, commerce power, constitutional law, national league of cities

Abstract:
Professor Wildenthal reviews Professor Brown's book, "Religion, Law, and the Land: Native Americans and the Judicial Interpretation of Sacred Land" (Greenwood, 1999). Brown discusses several court cases in which American Indian tribes have challenged government actions threatening lands held sacred according to Native American religious traditions - most notably, Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988), in which the Supreme Court rejected a challenge by the Yurok, Karok, and Tolowa Indians of northern California to a proposed government logging road through a mountainous part of the Six Rivers National Forest, not owned by the tribes but which they viewed as sacred.

Wildenthal praises the eloquence and insights of Brown's book, but suggests that it could have placed its discussion of the cases in better context by discussing more thoroughly other scholarly analyses of the issue. The review elaborates on several aspects of the prevailing judicial treatment of Indian sacred-site claims, identified by Brown. Wildenthal generally agrees with Brown that courts have often failed to appreciate the history and context of Indian religious freedom issues.

American Indian, Native American, religious freedom, Free Exercise Clause, Establishment Clause, First Amendment, sacred sites, Brian Edward Brown, Six Rivers National Forest

Abstract:
Professor Wildenthal reviews Stephen L. Pevar's book, "The Rights of Indians and Tribes" (Southern Illinois University Press, 3d ed. 2002). Wildenthal praises the timeliness and usefulness of this third edition of Pevar's book, a popular and well-regarded overview of Indian tribal and individual rights (part of a series sponsored by the American Civil Liberties Union). Pevar pointedly critiques recent Supreme Court decisions, and judiciously expresses views on several important issues, while clearly identifying and distinguishing such useful normative discussions from his excellent descriptive analysis of prevailing doctrines. Wildenthal suggests that Pevar could perhaps have discussed Indian gaming issues in more depth.

American Indian, Native American, tribal rights, Indian rights, American Civil Liberties Union, individual rights, constitutional law