Citations (2)


Footnotes (61)



Incorporation and Originalist Theory

Lawrence B. Solum

Georgetown University Law Center

May 5, 2009

Illinois Public Law Research Paper No. 08-16

Does the Fourteenth Amendment of the United States Constitution incorporate the Bill of Rights contained in the first eight amendments? And how should an originalist answer that question? This paper focuses on the latter question-the issues of originalist theory that are raised by judicial and scholarly debates over what is called "incorporation."

The inquiry proceeds in six parts. Part I answers the questions: "What is incorporation?" and "What is originalism?" Part II examines the theoretical framework for an investigation of incorporation that operates within the narrow confines of interpretation of the linguistic meaning text based on the assumption that the original meaning of the text is solely determined by the public meaning for ordinary citizens at the time of framing and ratification. Part III relaxes the assumption that "original meaning" is determined solely by the linguistic practices of the whole community and considers the possibility that the phrase "privileges or immunities" was a term of art with a technical meaning for those learned in the law. Part IV relaxes the assumption that the incorporation debate must be resolved solely by interpretation of linguistic meaning and considers the possibility that incorporation doctrine might be viewed as a construction of an under determinate constitutional text. Part V considers the implications of the possibility that the "privileges or immunities clause" instantiates what might be called a failure of constitutional communication, considering the possibility of a saving or mending construction of the clause. Part VI concludes.

Number of Pages in PDF File: 29

Open PDF in Browser Download This Paper

Date posted: February 19, 2009 ; Last revised: May 11, 2009

Suggested Citation

Solum, Lawrence B., Incorporation and Originalist Theory (May 5, 2009). Illinois Public Law Research Paper No. 08-16. Available at SSRN: https://ssrn.com/abstract=1346453 or http://dx.doi.org/10.2139/ssrn.1346453

Contact Information

Lawrence B. Solum (Contact Author)
Georgetown University Law Center ( email )
600 New Jersey Avenue, NW
Washington, DC 20001
United States
Feedback to SSRN

Paper statistics
Abstract Views: 3,397
Downloads: 473
Download Rank: 18,952
Citations:  2
Footnotes:  61