Tuesday, October 17, 2006

The Fourteenth Amendment and Incorporation I

From their ratification in 1791 through the Civil War, the Bill of Rights -- or more precisely the first eight amendments to the Constitution -- did not apply to the states. For example, the provisions contained in the First Amendment against restrictions on speech, the press and assembly constrained only the federal government. Those prohibitions did not restrict the states from passing laws that (for example) barred people from speaking or writing or assembling to express views about any subject. The Supreme Court so held, correctly, in a case called Barron v. Baltimore (1833), well known to generations of law students.

In 1866, two-thirds of both houses of the 39th Congress, dominated by Republicans, proposed the Fourteenth Amendment to the states; three-fourths of the states ratified the Amendment in 1868.

Even today, almost 140 years after ratification, academics and lawyers continue to argue over the meaning of the Fourteenth Amendment. In particular, they continue to dispute whether and how the Fourteenth Amendment applied the first eight amendments of the Constitution against the States. In legal jargon, this dispute is often referred to as the debate over "incorporation," that is, Did the Fourteenth Amendment "incorporate" the Bill of Rights against the states?

In the last twenty years or so, starting with Michael Kent Curtis's No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (Duke University Press 1986), legal scholars and historians have reexamined the evidence with a more careful appreciation of the underlying assumptions and understandings -- and misunderstandings -- held by the Republicans who drafted and propelled the Amendment to passage and ratification.

Having reviewed the evidence and arguments in some detail, I am firmly convinced that the Fourteenth Amendment was intended and understood to apply the restrictions contained in the first eight amendments (with perhaps one or two exceptions -- but I'll save that for a much later post) against the states.

In future posts, I will periodically review particular aspects of this dispute, focusing in particular on some of the speeches made by Senators and members of the House. Properly understood, they provide powerful evidence in support of incorporation.

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