A new paper to be published in the Ohio State Law Journal, written by Professor Bryan Wildenthal, argues that there is indeed originalist support for the idea that the Fourteenth Amendment was understood to incorporate the Bill of Rights as a restraint on action by the states. Wildenthal is especially critical of the originalist arguments offered against the incorporation doctrine by Charles Fairman and Raoul Berger. According to the abstract, the article
demonstrates the truly shocking and inexcusable extent to which Fairman, [Stanley] Morrison, and especially Berger mishandled the evidence and profoundly misunderstood the meaning of the Fourteenth Amendment. The extent of their scholarly malpractice has not been fully or adequately explored until now. This makes it especially disturbing that their works remain amazingly influential, decades after they were largely debunked. . . .
Surprisingly, the research presented in this article shows that there is still a great deal new to say about the original understanding of the Amendment in 1866-67. The article discusses primary source materials never adequately analyzed before. These include a May 1866 New York Times editorial published two days after the Amendment was introduced in the Senate, and an essay by a Kentucky state judge published during 1866-67. These materials, together with other evidence, suggest that the goal of nationalizing the Bill of Rights may have been widely understood during the ratification period.
DC: It acknowledges, cites, and builds on their critiques.
The Times wasn't liberal back in the 1860s. It was a moderate to conservative Republican paper when it came to slavery and other racial issues. Hard to believe in light of today's Times, but true.
A great argument for liberal texturalism.
On whether I am being too harsh on Fairman and Berger, well, maybe I am, but please don't question my own motives (at least until reading the article). That itself seems rather harsh. Whatever happened to innocent till proven guilty? And if you think I'm harsh, read Berger (who repeatedly launched ad hominen attacks against his scholarly opponents questioning their motives -- see pp. 47-48 of my manuscript). I do NOT question Fairman's or Berger's motives in the article. My motive is simply to advance the truth, and the truth as I see it is that they seriously mangled the truth about the meaning of the 14th Amendment in this regard. Curtis, Amar, and others have made that basic point before (as I extensively cite), but I elaborate and expand in ways they did not. See, e.g., in my manuscript, pp. 20-28 (misreading of Bingham by Fairman, Morrison, Berger, and Mendelson, in works from 1949 to 1997, despite clear guidance provided by Justice Black in 1947), pp. 44-48 (taking Berger to task for reprinting a falsehood about which he had previously been alerted and had even himself acknowledged), and see also p. 22 n110 and p. 35 n172 (more examples of Berger's refusal to benefit from scholarly critiques of his work).
Cheers,
Bryan Wildenthal
What was a "conservative Republican" in the context of the 1860s?
For more on Professor Amar, see here
*Touched on in my Con Law class, but not explored in depth
Bingham’s central role as the “James Madison of the Fourteenth Amendment” has often been recounted. He was influential in the 39th Congress for several reasons. His views were squarely in the mainstream of the dominant Republican Party. Historian Michael Benedict rated Bingham a “conservative” who “led the Republican nonradicals in the House” and had “greater influence on the course of Reconstruction” than “radical leaders” like the more famous Representative Thaddeus Stevens of Pennsylvania. “Conservative” in this context means closer to the Democratic Party of that time and less supportive of equal rights for Blacks, a stronger federal government, or stern measures to reform the defeated South. The Democrats, on the constitutional issues of concern here, were the more “conservative” party during the postwar 19th century, with overwhelming support among Southern Whites.
...
The New York Times provides an excellent window on the political views of this era, especially with regard to the Fourteenth Amendment. Most newspapers had a frank partisan slant during the 19th century and the Times was no exception, though even then it enjoyed unusual prestige. It was a Republican paper with a conservative slant. In early 1866, it was still defending President Johnson, a Unionist Democrat, against growing Republican criticism. The paper’s founding editor and co-owner, Henry J. Raymond, was himself a Republican elected to the 39th Congress. He and the Times supported Johnson’s veto of the Civil Rights Act of 1866. The Times harshly criticized Thaddeus Stevens, the radical Republican leader and archfoe of Johnson and Raymond. The Times also deprecated its media rivals The Nation and Harper’s Weekly as “radical,” though The Nation was actually quite moderate. But the Times and Raymond both supported the Fourteenth Amendment, and both later turned against Johnson. By 1868, the Times was praising the 1866 Act and Congress’s Reconstruction policies. ...
[Added comment for this blog: one conceded problem with my (and other scholars') reliance on the NYT is that we may be biased by the fact that it is today the most readily researchable on the web. Some have noted that the New York Herald was more widely circulated in the 1860s, and may have been more prestigious. I will need to add some comments on that to the manuscript, which it should be noted is still under peer review; I welcome comments and constructive criticism from all and sundry.]
For a very good discussion of the Privileges AND Immunities Clause, see (you guessed it) Wikipedia.
And even prior to ratification, if a framer said, "The 14th Amendment applied the Bill of Rights against the states", that statement is not worth much. It doesn't say which part of the text of the 14th did that.
Here is a preliminary snip of what I plan to say in the 1868-73 article (not part of the one currently forthcoming, but perhaps I should add a comment like this to the current one since I do indeed, as your comment suggests, discuss some post-1868 comments in the current article):
"... we must consider what weight to give early post-ratification evidence, as compared to the pre-ratification evidence .... Post-ratification evidence, by definition, could not have influenced the understanding of the members of Congress who proposed the Amendment or the state legislators who ratified it. Thus, strictly speaking, it is not direct evidence of the original understanding at all. ... Even evidence from 1867 has little direct bearing on the original understanding, since it postdates Congress's 1866 debates on proposing the Amendment, the 1866 elections largely fought over the Amendment, and the early ratifications by many states. It is thus more appropriate to consider most of that material together with the early post-ratification evidence.
"All this early material, whether pre- or post-ratification, is certainly (at the very least) useful and substantial indirect evidence of the original understanding. It tends to illustrate prevailing legal views. Evidence that some politicians, lawyers, and commentators believed, in the years right before and soon after ratification, that the Fourteenth Amendment incorporated the Bill of Rights, corroborates the view that, in fact, it did so. It makes it more plausible and likely that this view prevailed when the Amendment was proposed in 1866, and during the early ratification debates. Of course, the further after 1866 we get, the less value such evidence has with regard to the original understanding, one way or the other. Scholars may debate the exact date by which the value of such evidence diminishes or disappears. At the outside, the views of anyone active in public life during 1866-68 might be thought to have some probative value as to the original understanding, even if expressed many years or decades later. Such a broad definition would encompass the opinions of some Supreme Court justices into the early 20th century.
"I think that views expressed before 1876 have a substantial bearing on the original understanding, given the general continuity of party ideologies, legal theories, and overall public attitudes during the Reconstruction era. Historians generally identify the disputed 1876 presidential election and the resulting "Compromise of 1877" as the crucial turning point that marked the end of Reconstruction. Also, as we will see, the Supreme Court--with essentially no explanation--appeared to reject the incorporation theory in two decisions handed down in the spring of 1876: United States v. Cruikshank (1876) and Walker v. Sauvinet (1876). Whether the Court's decisions were correct or not, it seems likely that this colored subsequent views about the issue. Thus, I think the proper weight and value of views expressed after the spring of 1876 falls off sharply, for purposes of assessing the original understanding. Interestingly, we will see that there was, in fact, a seeming shift in views--from often pro-incorporation to mostly indifferent or hostile to incorporation--that took place around 1876. This is evident not just in Cruikshank and Walker, but in Congress's debates over the so-called "Blaine Amendment" in the summer of 1876.
"It is also appropriate to weigh evidence differently depending on its source. For example, the views of Democrats or others known to have opposed the Fourteenth Amendment should carry much less weight, to the extent they expressed a narrow reading of the Amendment. Their natural motive and tendency, which we must be careful to discount, was to minimize and undercut the Amendment, even render it a nullity as much as possible. Many Democrats viewed all the Reconstruction Amendments and legislation as illegitimate usurpations deserving no respect. On the other hand, pro-incorporation views expressed by Democrats or their sympathizers would be especially strong and intriguing evidence, though we would (again) have to consider whatever tactical motives might be at work. By the same token, anti-incorporation views expressed by Republicans or their sympathizers would be especially damaging to the theory.
"Scholars may debate how much weight to give pro-incorporation views expressed by Republicans after ratification. One might argue such Republicans would have a motive or tendency to exaggerate the scope of the Amendment, once it was safely ratified. I think that possibility must be carefully considered, especially if a particular view goes beyond any that found prominent expression during 1866-68. But I think post-ratification Republican views, if consistent with views prominently expressed before ratification, are entitled to great weight as corroborating evidence."
Following up on another point Andrew made, on how to refer to the 14th Amdt PI clause:
I do in fact deliberately refer to it as the "Privileges AND Immunities Clause." I have always disliked the common references to the "P OR I" clause. My addled mind can't locate at the moment whether I included the following explanation in the current manuscript text, but it is in a related article in progress and if need be I will add it to the current one:
"This clause [the 14th Amdt clause] is often called the “Privileges or Immunities Clause.” But the clause uses “or” merely because of a happenstance of phraseology. It says that states shall not violate either the “privileges” or the “immunities” of U.S. citizens. The important substantive point is that the clause protects both “privileges” and “immunities.” Thus, the more accurate and informative shorthand is the “Privileges and Immunities Clause.” This also has the virtue of consistency with the Article IV Privileges and Immunities Clause, which expressly refers to “privileges and immunities.” The clauses must be distinguished, of course, but merely substituting “or” for “and” would not adequately do so."
I don't know about Fairman, but I do know that Justice Stevens pretty well mangled things in the Saenz case. He really distorted what Justice Miller had said, as explained in the above-linked Wikipedia article.
The fact that it's not plain to you doesn't mean it wasn't plain to them. The use of technical terms -- and "p &/or i" is one -- requires that we attempt to understand what they meant by that. If the historical evidence shows that they understood that phrase to include the whole BoR, then they DID use "plain" language.
Can you imagine a distant future examination of the initial intent of, say, the Patriot Act based on an editorial from the New York Times?
Hyman: "And even prior to ratification, if a framer said, 'The 14th Amendment applied the Bill of Rights against the states', that statement is not worth much. It doesn't say which part of the text of the 14th did that." Wouldn't it obviously be P-or-I?
I liked the article a lot, but I think the comment at 4 about Justice Thomas as an instance of ignorance of scholarship on incorporation is pretty unfair. I don't think there's any reason at all to think that he's ignorant of revisionist scholarship. Amar, who takes the same view on the Establishment Clause, certainly isn't! Thomas is the only one willing to say that we should overrule Slaughterhouse, for instance, and he cites Curtis. I mean, he's the one who's citing revisionist scholarship. And saying he "question[s] the incorporation doctrine" (at 7) isn't right--he's only questioning the incorporation of the Establishment Clause, just like Amar. He advocates overruling Slaughterhouse, which is the only way to get incorporation properly established.
And, if a framer said prior to enactment that, "The 14th Amendment applied the Bill of Rights against the states", that statement is not worth much because obviously the speaker might have been talking about either the P or I Clause or the Due Process Clause. Such a statement about the Due Process Clause would pretty much be worthless if you believe (as I do) that the framers of the 14th Amendment wanted the Due Process Clause to follow whatever meaning the same words had in the Fifth Amendment.
Regarding Slaughterhouse, I very respectfully think that Justice Thomas is wrong about whether that decision should be overturned, and I would venture to guess that Bryan Wildenthal feels the same way I do about that. Slaughterhouse was decided correctly. It did not in any way, shap, or form prevent application of the Bill of Rights against the states. What it did was say that the 14th Amendment doesn't protect unenumerated rights like the right to pursue a trade or vocation.
Point well taken. However, I don't think the drafters were using language that was clear as to an intention to apply the Bill of Rights (or certain portions of it) to the states in view of the mess that has arisen over the years in interpreting what they meant.
It would not have been hard for the drafters to say, for example, that actions not permitted to Congress in Amendments I, II, etc., shall not be permitted to any State, if that was what was meant. Instead, we are asked to believe that much more obscure language was used to do this simple thing--and now we are told that such obscure language was used in the face of ongoing, actual discussion of applying the Bill of Rights to the States.
It just seems to me contrary to basic human nature that drafters would act that way. If anyone who comments on this blog were given the assignment to write the 14th Amendment so as to apply the Bill of Rights to the states, is the actual text of the 14th Amendment the formulation he would come up with? I don't think so--now or 140 years ago.
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
And in the face of ongoing, actual discussion in the First Amendment explicitly limiting Congress?
I just don't think that people are as fundamentally dishonest as you suggest, even politicians. For one thing, dishonest post-enactment statements can be corrected if others think they are inaccurate. But if a post-enactment statement is not successfully rebutted, it's very powerful evidence of what language originally meant. I don't think very many originalists would disagree about that, really. Certainly not Michael McConnell or the many people who have praised his work.
Hyman: "And, if a framer said prior to enactment that, 'The 14th Amendment applied the Bill of Rights against the states', that statement is not worth much because obviously the speaker might have been talking about either the P or I Clause or the Due Process Clause. Such a statement about the Due Process Clause would pretty much be worthless if you believe (as I do) that the framers of the 14th Amendment wanted the Due Process Clause to follow whatever meaning the same words had in the Fifth Amendment."
I'm mystified here. If a framer thought that the DP clause incorporated the Bill of Rights, that would certainly count against the view that the framers thought 14A DP was just the same as 5A DP. That's a very goofy view, though, and without pretty compelling evidence, it's not sensible to attribute goofy views to people. I don't see why you don't reason, based on your "framers thought 14A DP = 5A DP" principle, that a framer talking about full incorporation must be talking about P-or-I.
Hyman: "Slaughterhouse ... did not in any way, shap[e], or form prevent application of the Bill of Rights against the states. What it did was say that the 14th Amendment doesn't protect unenumerated rights like the right to pursue a trade or vocation." But Cruikshank, which reaffirmed Barron in 1876, reasons straightforwardly on the basis of Slaughterhouse's view of national citizenship as protecting only those rights we have in virtue of having a national government. I'll have to read what Wildenthal says about the supposed myth of Slaughterhouse being anti-incorporation (cited at 74 n.345), but I'm inclined to agree with the usual view that it doomed P-or-I to insignificance.
Certainly Thomas is the only one suggesting resurrecting P-or-I on anything like Curtis's view of the clause; this makes the comments about him as an example of possible ignorance of recent scholarship seem very unfair.
If not properly ratified, what is the remedy?
Ask a tax protester. That's their bag.
I'm sure that, in hindsight, Bingham would wish he had been even more specific. Trouble is, we all think we're clear when we say something because we actually know what's in our minds. Only later do we realize that others viewed it differently.
That said, there can't be much doubt that Bingham made it pretty clear that he viewed the 14th A as incorporating the BoR (and more). The fact that the SCOTUS later refused to go along may say more about their own obscurity than his.
Wasn't Cruikshank about whether blacks had a right to keep and bear arms?
Your high school teacher was just plain smart in calling a spade a spade. Whether smartness implies being an outlier is an open question. I think not. Most people recognized the drastic and unnecessary nature of the decision, but possibly out of institutional loyalty picked the devil they knew.
Bad decisions (for most of us and the society) like Slaughterhouse, Dred Scott, and the like were also made by smart people who successfully secured their self interest for quite some time. The Supreme Court will be better served if it started revisitng its precedents more regularly to correct errors-- in effect taking a leaf from Science and the value of introspection instead of the religion-based infallibility complex. US now is strong enough to withstand introspection to an even greater extent.
For once Justice Thomas seems to have something more interesting than a rubber stamp.
You also say: "I don't see why you don't reason, based on your 'framers thought 14A DP = 5A DP' principle, that a framer talking about full incorporation must be talking about P-or-I." The problem is that (in 1866) interpretations of the 5th Amendment DP Clause were extremely fragmented. Some people thought it was purely procedural, some thought it protected substantive rights, some thought it only prevented deprivations unauthorized by law, et cetera.
Regarding Cruikshank, the Court in that case said the 1st Amendment right to assembly "was not intended to limit the powers of the State governments in respect to their own citizens." In stark contrast, the Slaughterhouse Court had listed that very right as one of the Privileges or Immunities of citizens of the United States: "The right to peaceably assemble and petition for redress of grievances ... are rights of the citizen guaranteed by the Federal Constitution." And, the actual holding of Slaughterhouse had nothing to do with the Bill of Rights or any other constitutional right that had been enforceable against teh federal government.
Lack of boldness might be one reason, lack of time another. I don't think that Charles Sumner was lacking in boldness in 1866, but what he and other Republicans thought about the 14A in 1871 is very persuasive evidence to virtually any originalist. If framers say that they think the sense of the constitutional language was something, and, since they are framers, they are not in a position to make a mistake about it, then they are either right or lying, right?
On weird theories of 5A DP, I again would assume that someone had a sensible theory unless there is evidence to the contrary. It's one thing to say that particular framers had idiosyncratic views, so we should read what they say carefully and in light of those views, but entirely another to say that, because some framers had idiosyncratic views, we should consider evidence that otherwise would be perfectly clear "worthless."
In context, it seems obvious that Slaughterhouse is referring only to petitioning the federal government. Cruikshank, 3 years later, with no change in the membership of the court other than substituting CJ Waite for CJ Chase, certainly didn't suggest it thought it was changing anything Slaughterhouse said.
The Supreme Court now says that virtually all of the Bill of Rights is incorporated into 5A DP, along with abortion, gay sex, and various other things. I agree that is a weird view, but the view that 5A DP incorporated the Bill of Rights was not very unusual in 1866. Many people prior to the Civil War believed that 5A DP barred slavery in the federal territories. I believe they were wrong about that particular aspect of 5A DP, but nevertheless it was a common view.
Regarding Slaughterhouse, all I'm saying is that there was ambiguous dicta both favoring and opposing the idea of incorporation via the P or I Clause. How the Court spun that dicta in subsequent cases only speaks to whether those subsequent cases were valid, not whether Slaughterhouse was valid. The simple fact is that Slaughterhouse did not deal with any right that already restrained the federal government. Do you really think that the right to pursue a vocation or trade (which was the right at issue in Slaughterhouse) can be considered a "privilege or immunity of a citizen of the United States", given that the federal government is not restrained from violating that right (e.g. within the city limits of Washington D.C.)? The Slaughterhouse Court said "no", and I agree.
"Do you really think that the right to pursue a vocation or trade (which was the right at issue in Slaughterhouse) can be considered a 'privilege or immunity of a citizen of the United States', given that the federal government is not restrained from violating that right (e.g. within the city limits of Washington D.C.)?"
We need to distinguish Slaughterhouse's reasoning from its result. Its reasoning about the privileges or immunities of citizens of the United States including only rights had because of the existence of the federal government was fatal to incorporation, and was seen as such by Cruikshank.
It's true that Cruikshank could be wrong, but saying that it's wrong because it's misreading Slaughterhouse--decided just three years before, by almost the same Court, with Slaughterhouse author Miller in the majority--seems quite implausible indeed. I don't think it's a matter of spinning dicta, but simply applying the central holding of the case.
Actually, here's the key sentence from Slaughterhouse:
This holding clearly excludes the unenumerated right to pursue a trade or vocation, but it does not clearly exclude Amendments 1-8. On February 28 of 1866, John Bingham discussed on the House floor the meaning of the phrase "the privileges and immunities of citizens of the United States," and he said that "those immunities follow under the Constitution." Bingham's understanding was not necessarily inconsistent with the above-quoted view of the Slaughterhouse Court that these immunities may owe their existence to the Federal government's Constitution.
Frankly, I've always found it puzzling that the rights mentioned in the P or I Clause could possibly be anything other than the rights that already restrained the federal government. The above-quoted language of Slaughterhouse certainly did not rule out such an interpretation, IMHO.
So if one isn't a US citizen then one does not have "freedom of speech, freedom from cruel and unusual punishment, and the like"? That interpretation is at odds with decades of precedent. This seems to demonstrate a serious misunderstanding of the nature of the bill of rights. It is composed of absolute restrictions upon the powers of the federal government. Even if an act would be permissable according to the enumeration of the federal government's powers, if it contravenes a limitation from the bill of rights the government cannot so act. Thus the Privileges or Immunities Clause cannot be said to incorporate the bill of rights because the protections of the bill of rights are not privileges or immunities possessed by right of citizenship. Even if the majority had intended such incorporation through that clause (something for which I believe there is no evidence) they would have failed because the instrument of their intent was semantically unintelligible. They might as well have passed a string of nonsense syllables and then claimed that it did whatever had been intended.
You say that "the Privileges or Immunities Clause cannot be said to incorporate the bill of rights because the protections of the bill of rights are not privileges or immunities possessed by right of citizenship." However, some parts of the Bill of Rights may well apply only to citizens. The Supreme Court explained in United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990): "[B]y contrast with the Fifth and Sixth Amendments, [the Fourth] extends its reach only to 'the people.'"
But let's suppose (for argument's sake) that the entire Bill of Rights applies to all persons, and not just to citizens. Then, those would be privileges or immunities of persons in the United States, including both citizens as well as non-citizens. Congress in 1866 did not care as much about the non-citizens, when it forbade states from abridging those privileges or immunities. Surely, Congress was entitled to have such a preference. Are you syaing that incorporation of Amendments 1-8 only would have occurred if the 14th Amendment had said, "privileges or immunities of all persons in the United States"?
Absolutely agreed.
Also absolutely agreed to.
P&I are not equal to Rights. Rights are not a subset of P&I nor are P&I a subset of Rights. The government cannot grant Rights. I know this is not what the legal community generally recognizes but I take the Dec. of Ind. as superior.
P&I are granted by government. P = authority to do something. I = exemption from a law.
Rights belong to humans (all humans not just US citizens) by virtue of birth and are not granted by laws. The BoR enumerates some of the Rights which preexist the Constitution. The BoR does not grant those Rights.
Do "due process" or "equal protection" "selectively incorporate" portions of the BoR? Is
"due process" in the 15th the same as the 5th.
One must wonder why the "Court" has been "selective" in its incorporation rather than just having the courage to say, it's all or none. One must wonder why the "Rights" "incorporated" by the "Court" differ in extent from those enumerated in the BoR.
Also, the notion that the Privileges or Immunities Clause does not incorporate any rights in the Bill of Rights, as limitations upon the states, is very strongly refuted by the following statement by the "James Madison of the Fourteenth Amendment". Minutes before the House approved the Fourteenth Amendment, Congressman John Bingham said:
This is one of the strongest pieces of evidence that the P or I Clause actually means what it says.
For the sake of completeness and consistency, it should be noted that the judiciary does not adhere to such a standard for at least the Federal Government. Cruel and unusual punishement is routine (necesasrily oxymoronic) in Guantanomo Bay and a Federal judge just ruled that tortured foreigners have no right of redress in dismissing a suit against Rumfeld et al. Until this horrific situation is resolved properly, such are merely the expectations of the citizens, but not as understood by those who should protect such rights.