Nationalizing the Bill of Rights: Scholarship and Commentary on the Fourteenth Amendment in 1867-1873
Journal of Contemporary Legal Issues, Vol. 18, p. 153, 2009
171 Pages Posted: 6 Mar 2009 Last revised: 9 Mar 2020
Date Written: March 6, 2009
This article was part of a 2009 symposium on 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" against the states via the Fourteenth Amendment. Everyone agrees such a goal was embraced by some leading Reconstruction Republicans, but scholars continue to debate whether (and 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 had become newly current as this article was written and published, as the Supreme Court was at the time expected to hear, and did in fact accept and decide, a case applying to state and local governments the Second Amendment right to bear arms. See McDonald v. Chicago, 561 U.S. 742 (2010). The Supreme Court in McDonald favorably cited several times this author's previous article on the subject, see Wildenthal, "Nationalizing the Bill of Rights: Revisiting the Original Understanding of the Fourteenth Amendment in 1866-67," 68 Ohio St. L.J. 1509 (2007), also available on SSRN. https://ssrn.com/abstract=963487
See McDonald, 561 U.S. at 763 n.10 (opinion of the Court by Alito, J.), and 829 n.10, 830 n.12, and 841 (Thomas, J., concurring in part and concurring in the judgment). Both that 2007 article and this 2009 article were extensively cited, on both sides, in the briefs filed in McDonald. The 2007 article has also been cited favorably by the U.S. Supreme Court in Timbs v. Indiana, 586 U.S. ___, 139 S. Ct. 682, 691 (2019).
The particular focus of this 2009 article is the scholarly and press commentary on the 14th Amendment from 1867 up to (but not including) the Slaughter-House Cases decided in 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. Some less-well-known but also significant figures, such as Samuel Smith Nicholas of Kentucky, are also discussed, along with articles in "The Nation," then a leading Republican-oriented newsmagazine (founded in 1865), and some other news 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 far more thorough research than has ever been done on this issue, demonstrates that view is wrong. It turns out that as many as 86% of the total of 37 U.S. states at that time (with 89% of the total American population in those states!) guaranteed or at least largely complied with the grand jury procedure in 1868.
The article concludes that the commentary during this period supports the thesis that nationalizing the Bill of Rights was part of the original public meaning of the Amendment. It also 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 2007 article cited above).
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 Classification: K10
Suggested Citation: Suggested Citation