Rosenthal on Original Public Meaning and the Problem of Incorporation

The New Originalism Meets the Fourteenth Amendment: Original Public Meaning and the Problem of Incorporation is a new article by Lawrence Rosenthal, Chapman University School of Law. It is forthcoming in the Journal of Contemporary Legal Issues. Here's the abstract:

This paper, prepared for a symposium on the Bill of Rights and the Fourteenth Amendment at the University of San Diego's Institute for Constitutional Originalism, examines the historical case for incorporation within the Fourteenth Amendment of the rights in first eight amendments to the Constitution in light of the recent turn in thinking about originalist methods of constitutional interpretation.

In recent decades, the historical case for incorporation has made something of a comeback, resting on strong evidence that many of the key framers of the Fourteenth Amendment considered the first eight amendments to be among the privileges and immunities of citizenship protected by the Fourteenth Amendment's Privileges or Immunities Clause. At the same time, however, most originalists have rejected the view that constitutional interpretation should be based on the intent of the framers, and instead have argued that constitutional text should be interpreted in light of its original public meaning. This approach, sometimes called "The New Originalism," seems to have prevailed in the Supreme Court; the Court's recent decision interpreting the Second Amendment's right to bear arms endorses original public meaning as the appropriate method of originalist interpretation.

This paper seeks to demonstrate that the New Originalism poses special problems for incorporation. The view of key framers that because the privileges and immunities of citizenship included the Bill of Rights was not the predominant one; although the concept of the privileges and immunities of citizenship at the time of the Fourteenth Amendment's framing was contested, the most widely shared view was the these privileges and immunities of citizens did not include the first eight amendments. Although many who crafted the Fourteenth Amendment had a different view, the evidence that the drafters succeeded in altering the public's understanding of the privileges and immunities of citizenship is in conflict, and in many respects unsatisfactory. Viewed through the lens of original public meaning, the historical case for incorporation is therefore problematic. The paper concludes that because the meaning of the Privileges and Immunities Clause at the time of ratification with rife with ambiguity, a nonoriginalist approach is a better way to tackle the incorporation problem, even for a New Originalist determined to base constitutional adjudication on methods for ascertaining constitutional meaning that were accepted in the framing era.