Nationalizing the Bill of Rights: Revisiting the Original Understanding of the Fourteenth Amendment in 1866-67
Ohio State Law Journal, Vol. 68, No. 6, p. 1509, 2007
119 Pages Posted: 19 Feb 2007 Last revised: 28 Feb 2021
Date Written: February 19, 2007
Note: This article has been cited favorably by the U.S. Supreme Court in McDonald v. Chicago, 561 U.S. 742, 763 n. 10, 829 n. 10, 830 n. 12, 841 (2010) (opinion of the Court and opinion concurring in judgment), and in Timbs v. Indiana, 586 U.S. ___, 139 S. Ct. 682, 691 (2019) (concurring opinion). An important follow-up to this article was published in 2009 in the University of San Diego's Journal of Contemporary Legal Issues. https://ssrn.com/abstract=1354404
For many years, the reigning view among scholars and judges was that the Fourteenth Amendment was never understood (except by a few eccentric or confused figures) to nationalize (or incorporate) the entire Bill of Rights, so as to enforce it against the states. That modern, conventional, anti-incorporation view was developed primarily (starting in 1949) by Charles Fairman and Stanley Morrison, and defended by Raoul Berger from 1977 to 1997.
The pro-incorporation view had been asserted by Justice Hugo Black, in his famous dissent from the Supreme Court's decision in Adamson v. California (1947). Scholars taking a pro-incorporation stance, in support of Black and opposition to Fairman and Morrison, include (among others) William Winslow Crosskey in the 1950s and Alfred Avins in the 1960s. The pro-incorporation view was given powerful further scholarly support by Michael Kent Curtis starting in 1980, joined by Akhil Reed Amar, Richard Aynes, Earl Maltz, and Stephen Halbrook, among others, in the 1990s. Some scholars and judges still question, or reject outright, the legitimacy of the selective incorporation doctrine by which the Supreme Court by 1969 (in practical effect) applied most of the Bill of Rights to the states.
This article demonstrates as never before the truly shocking extent to which Fairman, Morrison, and (especially) Berger mishandled the evidence and profoundly misunderstood the meaning of the Fourteenth Amendment. Yet their work remains unjustifiably influential. Fairman's 1949 article has been viewed as a classic for more than half a century. It is one of the most-cited law review articles of all time. Berger's books remain widely cited and admired, especially in conservative circles. But the research presented in this article shows that there is still a great deal new to say about the original understanding of the Amendment.
Part I reviews the doctrine of Barron v. Baltimore, the 1833 Supreme Court decision holding that the Bill of Rights did not originally apply to the states. Parts II to VI review the congressional debates over the Amendment, focusing on the crucial speeches of Rep. John A. Bingham (R-Ohio) and Sen. Jacob M. Howard (R-Mich.), the reactions of their colleagues in Congress, contemporary press coverage, and the analysis of later generations of scholars. Part VII reviews the debates during the state ratification process. The article analyzes primary source materials never fully discussed before (indeed, in some cases, barely quoted or mentioned in earlier scholarship). These include, most notably, a New York Times editorial published two days after the Amendment was introduced in the Senate (discussed in Part VI), and an essay by Samuel Smith Nicholas, a Kentucky state judge (discussed in Part VII.B).
In addition to providing a descriptive reevaluation of the evidence, the article offers several theoretical and analytical arguments and insights. The Introduction grounds the article in the modern scholarly approach focusing on the original public meaning of constitutional provisions. Part VII.B, among other points, applies to the debates over the Amendment the insights of linguist George Lakoff on the framing of political issues. Part VII.C develops an argument about how we should weigh and evaluate the available record (and its silences) in seeking to illuminate the original understanding. Parts VIII and IX suggest how we might construe the text of the Amendment in light of the historical evidence.
The article concludes that nationalizing the Bill of Rights was probably widely understood during the ratification period as a key purpose of the Fourteenth Amendment. But it concedes the incomplete nature of the surviving evidence from 1866-67, and that more work is desirable on the subject. A response to this article by Professor George C. Thomas III appears in the same issue of the Ohio State Law Journal (available at http://ssrn.com/abstract=1005685). Professor Wildenthal's reply to Professor Thomas's response also appears in that issue (available at https://ssrn.com/abstract=1019308).
Keywords: Fourteenth Amendment, Bill of Rights, incorporation theory, originalism, Reconstruction, John Bingham, Jacob Howard, Charles Fairman, Raoul Berger, Samuel Nicholas
JEL Classification: K19
Suggested Citation: Suggested Citation