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)

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.

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

JEL Classification: K10