Saturday, March 7, 2009

Wildenthal on Commentary on Nationalizing the Bill of Rights, 1867-73

Nationalizing the Bill of Rights: Scholarship and Commentary on the Fourteenth Amendment in 1867-73 is a new article by Bryan H. Wildenthal, Thomas Jefferson School of Law. It will appear in the Journal of Contemporary Legal Issues (2009). Here's the 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 general topic of the Symposium, and the articles growing out of it, is the so-called "incorporation debate." That debate concerns 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. Everyone agrees that such a goal was embraced by some leading Reconstruction Republicans, such as Rep. John Bingham and Sen. Jacob Howard. 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. This issue has become newly current given speculation that the Supreme Court, in the wake of District of Columbia v. Heller, 128 S. Ct. 2783 (2008), may apply to the states the Second Amendment right to bear arms.
The particular focus of this Article is on what may be learned from the scholarly and press commentary on the Amendment from 1867 to 1873 (up to before the Slaughter-House Cases decided in April 1873). How much weight should such commentary (mostly post-ratification) have as a general matter? Does the commentary support the incorporation thesis or undermine it? The writers considered include well-known legal scholars of the era such as Cooley, Bishop, Wharton, Pomeroy, Farrar, and Paschal, and also a less-well-known but arguably significant figure, 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 this Article has sought to be thorough in assessing relevant scholarly discussions published in book or law review form during the period covered, it does not exhaustively survey all of the archival newspaper or magazine materials that have recently become more readily available. More work remains to be done in future articles.
This 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.
Other articles in this Symposium 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 Voume 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) (; Kurt T. Lash, "Beyond Incorporation," 18 J. Contemp. Legal Issues --- (forthcoming 2009) (; and Lawrence B. Solum, "Incorporation and Originalist Theory," 18 J. Contemp. Legal Issues --- (forthcoming 2009) (