The Riddle of the Fourteenth Amendment: A Reply to Professor Wildenthal

Abstract

Professor Bryan Wildenthal makes an impressive contribution to the debate about whether ratification of the Fourteenth Amendment acted to "incorporate" the Bill of Rights so that its protections are enforceable against the states. His signal achievement is to develop a metric that facilitates making a judgment about whether the states had sufficient notice of the intent of at least some in Congress to incorporate the Bill of Rights into Section 1. He concludes that the states ratified with adequate notice of incorporation. In George Thomas's reply to Wildenthal, he reviews the evidence and concludes that it is insufficient to meet Wildenthal's metric and thus is insufficient to show that the states knew of congressional intent to incorporate. This does not, for Thomas, end the debate because the evidence is also insufficient to show that the states were not aware of the intent to incorporate. For Thomas, the historical question remains a riddle.

Keywords: incorporation, Fourteenth Amendment, Bill of Rights