"Nationalizing the Bill of Rights: Scholarship and Commentary on
the Fourteenth Amendment in 1867-73"
Journal of Contemporary Legal Issues, Vol. 18, 2009
TJSL Legal Studies Research Paper No. 1354404
Contact: BRYAN H. WILDENTHAL
Thomas Jefferson School of Law
Email: [email protected]
Auth-Page: http://ssrn.com/author=181791
Full Text: http://ssrn.com/abstract=1354404
ABSTRACT: This Article is part of a Symposium, "The Fourteenth
Amendment and the Bill of Rights: What Have We Learned? Why Does
It Matter?" (University of San Diego School of Law, Center for
the Study of Constitutional Originalism, Jan. 7, 2009). The
Symposium topic is 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" (pick your terminology)
against the states via the Fourteenth Amendment. Everyone agrees
that such a goal was embraced by some leading Reconstruction
Republicans, but scholars continue to debate whether (or 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 has become newly current since
the Supreme Court, in the wake of District of Columbia v. Heller,
128 S. Ct. 2783 (2008), may have to decide whether to apply to
the states the Second Amendment right to bear arms.
The particular focus of the Article is on the scholarly and press
commentary on the Amendment from 1867 up to (but not including)
the Slaughter-House Cases of 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,
and also some less-well-known but arguably significant figures,
such as Samuel Smith Nicholas of Kentucky. Articles in "The
Nation," then a leading Republican-oriented newsmagazine (founded
in 1865), and some other news articles, are also considered.
While the Article seeks to be thorough in assessing relevant
scholarly discussions published in book or law review form during
the period covered, it does not pretend to have exhaustively
surveyed all the archival newspaper or magazine materials that
have recently become more readily available. More work remains to
be done in future 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 more thorough research than has ever before
been published on the issue, suggests that view is wrong. It
turns out that as many as 86% of the states (with 89% of the
population) largely complied with the grand jury procedure in
1868.
The Article concludes that, on the whole, the commentary during
this period supports the thesis that nationalizing the Bill of
Rights was part of the original public meaning of the Amendment,
though the evidence is certainly mixed and others may draw
different conclusions. The Article 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 third
installment, Bryan H. Wildenthal, "Nationalizing the Bill of
Rights: Revisiting the Original Understanding of the Fourteenth
Amendment in 1866-67," 68 Ohio St. L.J. 1509 (2007)
(http://ssrn.com/abstract=963487).
Other articles in this Symposium (the participants included
Michael Kent Curtis, Richard Aynes, Donald Dripps, Yale Kamisar,
Kurt Lash, George Thomas, Lawrence Rosenthal, Carolyn Ramsey, and
Lawrence Solum) deal with various related historical and
theoretical issues. This Article offers a number of responses to
the other articles, all of which will be published in Volume 18
of the University of San Diego's Journal of Contemporary Legal
Issues. The other articles posted so far on SSRN include: Michael
Kent Curtis, "The Bill of Rights and the States: An Overview From
One Perspective," 18 J. Contemp. Legal Issues --- (forthcoming
2009) (http://ssrn.com/abstract=1334687); Kurt T. Lash, "Beyond
Incorporation," 18 J. Contemp. Legal Issues --- (forthcoming
2009) (http://ssrn.com/abstract=1323431); and Lawrence B. Solum,
"Incorporation and Originalist Theory," 18 J. Contemp. Legal
Issues --- (forthcoming 2009) (http://ssrn.com/abstract=1346453).
**************************************************
Professor Joseph Olson, J.D., LL.M. o- 651-523-2142
Hamline University School of Law (MS-D2037) f- 651-523-2236
St. Paul, MN 55113-1235 c- 612-865-7956
[email protected]
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