George C. Thomas, III, Rutgers-Newark Law School, has posted
Newspapers and the Fourteenth Amendment: What Did the American Public Know About Section 1? which also appears in
Journal of Contemporary Legal Issues 18 (2009). Here's the abstract:
For over sixty years scholars have debated whether Section 1 of the Fourteenth Amendment "incorporated" the Bill of Rights guarantees and thus made them enforceable against the states. Recently, the debate has turned to what the state legislators might have known when they ratified the amendment. In this paper, presented at the University of San Diego Law School on January 7, George Thomas discusses the body of evidence already available and then presents new evidence gathered from a search of newspaper archives for the period 1865 to 1869. He discovered one newspaper article that clearly makes the incorporation case and three others that offer lesser degrees of support for the proposition that educated men of the era were aware that Section 1 included the Bill of Rights. But 96% of the articles that discussed "privileges" and "immunities" gave no hint of a connection with the Bill of Rights.
Image credit: Senator Jacob Howard
