A Reply to Professor Thomas [On Nationalizing the Bill of Rights]

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.

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

JEL Classifications: K10

Accepted Paper Series