Nationalizing the Bill of Rights: Scholarship and Commentary on the Fourteenth Amendment in 1867-73

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).

Keywords: 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

JEL Classifications: K10

Accepted Paper Series