Yale Law Journal
April 1992, Page 1193
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.

THE BILL OF RIGHTS AND THE FOURTEENTH AMENDMENT
Akhil Reed Amar *

Copyright © 1992 by The Yale Law Journal Company, Inc.; Akhil Reed Amar

                                   CONTENTS                                     

INTRODUCTION ......................................................... 1194 

I.  ANTEBELLUM IDEAS ................................................. 1198 

    A. Barron ........................................................ 1198 

    B. The Barron Contrarians ........................................ 1203 

            1. The General Wording/Expressio Unius Theory ............ 1204 

            2. The Declaratory Theory ................................ 1205 

    C. The Contrarian Context ........................................ 1212 

            1. Technology, Geography, and Ideology ................... 1212 

            2. Slavery ............................................... 1215 

II. THE EASY CASE FOR INCORPORATION .................................. 1218 

    A. The Text of the Fourteenth Amendment .......................... 1218 

            1. 'No State shall ...' .................................. 1218 

            2. '... make or enforce any law which shall abridge ...'.. 1219 

            3. '... the privileges or immunities ...' ................ 1220 

            4. '... of citizens of the United States;' ............... 1222 

            5. '... nor shall any State deprive any person of life,           

         liberty, or property, without due process of law;' ....... 1224 

            6. Beyond Mechanical Incorporation ....................... 1227 

    B. Glosses on the Text ........................................... 1233 

            1. The Thirty-ninth Congress ............................. 1233 

                a. The Easy Case Made Easier ......................... 1233 

                b. Incorporating Anti-Incorporation Insights ......... 1238 

                   (i) Fairman ....................................... 1238 

                   (ii) Berger ....................................... 1243 

            2. Ratification: The Sounds of Silence ................... 1246 

                a. Ratification Silence and the Incorporation Debate.. 1246 

                b. Ratification Silence More Generally ............... 1251 

            3. Early Interpretations: In Search of Reasons ........... 1254 

III.THE HARD PART OF INCORPORATION ................................... 1260 

    A. The Problem: Fitting the Constitution's Pegs into
Reconstruction Holes ............................................. 1260 

    B. The Solution: Refined Incorporation ........................... 1262 

            1. Total and Selective Incorporation Revisited ........... 1262 

            2. A New Synthesis ....................................... 1264 

            3. A Founding Analogy .................................... 1266 

            4. The Old Roots of the New Synthesis .................... 1268 

    C. 'Refined Incorporation' Applied: The Rights of Expression ..... 1272 

CONCLUSION ........................................................... 1284 

[Page 1194]

INTRODUCTION

What is the relationship between the Bill of Rights and the Fourteenth Amendment? Does the Amendment "incorporate" the Bill, making the Bill's restrictions on federal power applicable against states? If so, which words in the Fourteenth Amendment work this change? Are all, or only some, of the provisions of the first ten amendments "incorporated" or "absorbed" into the Fourteenth? If only some, which ones, and why? Once "incorporated" or "absorbed," does a right or freedom declared in the Bill necessarily constrain state and federal governments absolutely equally in every jot and tittle? Or, on the other hand, can a guarantee in the Bill ever lose something in the translation, so that only a part of the guarantee-perhaps only its "core"- applies against state governments by dint of the Fourteenth Amendment?

These questions have framed a debate that, in the words of Judge Henry Friendly, "go[es] to the very nature of our Constitution" with "profound effects for all of us." [1] Professor Van Alstyne has written that "it is difficult to imagine a more consequential subject," [2] an assessment confirmed by the extraordinary number of twentieth-century legal giants who have locked horns in the debate-Hugo Black, Felix Frankfurter, William Brennan, Henry Friendly, William Crosskey, Louis Henkin, Erwin Griswold, and John Ely, to name only a few. Perhaps even more extraordinary has been the willingness of Supreme Court Justices to reinforce their judicial pronouncements on the issue with extra-judicial elaborations. For example, after his retirement from the bench and shortly before his death, Justice Frankfurter published as his parting words to [Page 1195] the legal community an elaborate "memorandum" on "incorporation" in the Harvard Law Review, piling up case citations and other material to support his own preferred solution to the issue. [3] Three years later, Frankfurter's great sparring partner, Justice Black, publicly responded in his Carpentier Lectures, breaking "a longstanding rule of not speaking out on constitutional issues." [4] And in two James Madison Lectures delivered twenty-five years apart-each aptly titled "The Bill of Rights and the States"-Justice Brennan expanded upon his own proposed solution to the incorporation conundrum. [5]

When we shift our attention from lectures and law reviews to United States Reports, we see much more evidence of the centrality of the incorporation debate to twentieth-century constitutional law. Consider, for example, the lead paragraph of the most famous footnote in Supreme Court history: "There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth." [6] In the half-century since Carolene Products, the Court has taken the hint of footnote four. A list of cases applying various parts of the Bill of Rights against states reads like the "greatest hits" [7] of the modern era: New York Times v. Sullivan, [8] Abington School District v. Schempp, [9] Mapp v. Ohio, [10] Miranda v. Arizona, [11] Gideon v. Wainwright, [12] Duncan v. Louisiana, [13] and on and on. Some cases, like Sullivan, merely applied provisions of the Bill of Rights that had long before been deemed "embraced within" the Fourteenth Amendment; others, like Duncan, achieved notoriety precisely because they decided to "incorporate" previously "unabsorbed" clauses. Speaking only of the latter set, Justice Brennan ranked the incorporation opinions ahead of reapportionment and desegregation cases as "the most important series of decisions of the Warren era." [14] In remarks sharply critical of Brennan and his brethren, Solicitor General [Page 1196]

Erwin Griswold offered an even more sweeping assessment of the stakes involved: "I can think of nothing in the history of our constitutional law which has gone so far since John Marshall and the Supreme Court decided Marbury v. Madison in 1803." [15]

And yet, despite the importance of the topic and all the attention devoted to it, we still lack a fully satisfying account of the relationship between the first ten amendments and the Fourteenth. Minor variations aside, three main approaches have dominated the twentieth-century debate. The first, represented by Justice Frankfurter, insists that, strictly speaking, the Fourteenth Amendment never "incorporated" any of the provisions of the Bill of Rights. [16] The Fourteenth requires only that states honor basic principles of fundamental fairness and ordered liberty-principles that might indeed happen to overlap wholly or in part with some of the rules of the Bill of Rights, but that bear no logical relationship to those rules. The second approach, championed by Justice Black, insists on "total incorporation" of the Bill of Rights. [17] The Fourteenth Amendment, claimed Black, made applicable against the states each and every provision of the Bill, lock, stock, and barrel-at least if we define the Bill to include only the first eight amendments. Faced with these diametric views, Justice Brennan tried to steer a middle course of "selective incorporation." [18] Under this third approach, the Court's analysis could proceed clause by clause, fully incorporating every provision of the Bill deemed "fundamental" without deciding in advance whether each and every clause would necessarily pass the test. Methodologically, Brennan's approach seemed to avoid a radical break with existing case law rejecting total incorporation, and even paid lip service to Frankfurter's insistence on fundamental fairness as the touchstone of the Fourteenth Amendment. In practice, however, Brennan's approach held out the possibility of total incorporation through the back door. For him, once a clause in the Bill was deemed "fundamental" it must be "incorporated" against the states in every aspect, just as Black insisted. And nothing in the logic of selective incorporation precluded the possibility that, when all was said and done, virtually every clause of the Bill would have been deemed fundamental.

As we shall see, there is something to be said for each of these positions, but each is also fatally flawed. An alloy of the three seemingly incompatible elements will prove far more attractive and durable than each unalloyed component. But before such an alloy can profitably be forged, we need to do a [Page 1197] considerable amount of preparatory work. In Part I, we shall examine antebellum ideas about whether the original Bill of Rights applied against the states. In Part II, we shall study with care the text and context of the Fourteenth Amendment. Finally, in Part III, we shall return to the Black- Brennan-Frankfurter debate, which I shall attempt to synthesize with a new model of incorporation.

This synthesis, which I call "refined incorporation," begins with Black's insight that all of the privileges and immunities of citizens recognized in the Bill of Rights became applicable against states by dint of the Fourteenth Amendment. But not all of the provisions of the original Bill of Rights were indeed rights of citizens. Some instead were at least in part rights of states, and as such, awkward to incorporate fully against states. Most obvious, of course, is the Tenth Amendment, but other provisions of the first eight amendments resembled the Tenth much more than Justice Black admitted. Thus, there is deep wisdom in Justice Brennan's invitation to consider incorporation clause by clause rather than wholesale. But having identified the right unit of analysis, Brennan posed the wrong question: Is a given provision of the original Bill really a fundamental right? The right question is whether the provision really guarantees a privilege or immunity of individual citizens rather than a right of states or the public at large. And when we ask this question, clause by clause, we must be attentive to the possibility, flagged by Frankfurter, that a particular principle in the Bill of Rights may change its shape in the process of absorption into the Fourteenth Amendment. This change can occur for reasons rather different from those offered by Frankfurter, who diverted attention from the right question by his jaundiced view of much of the original Bill and by his utter disregard of the language and history of the privileges or immunities clause. Certain hybrid provisions of the original Bill-part citizen right, part state right-may need to shed their state-right husk before their citizen-right core can be absorbed by the Fourteenth Amendment. Other provisions may become less majoritarian and populist, and more libertarian, as they are repackaged in the Fourteenth Amendment as liberal civil rights-"Privileges or immunities" of individuals- rather than republican political "right[s] of the people," as in the original Bill.

Before we can properly elaborate and evaluate this synthesis, we must cover a considerable amount of ground. The best place to begin our journey is Barron v. Baltimore. [19]

[Page 1198]

I. ANTEBELLUM IDEAS

A. Barron

In 1833, the Supreme Court confronted for the first time the argument that a state government had violated one of the provisions of the Bill of Rights. Narrowly framed, the issue raised by Barron was whether the Fifth Amendment's takings clause limited not just the federal government, but states and municipalities as well. The Court, however, saw that the reasoning behind John Barron's contention radiated much further. Perhaps the Court could have ruled for Barron without necessarily implying that each and every prohibition of the Bill of Rights would thenceforth bind states. For example, unlike the takings clause, the words of the First Amendment explicitly spoke of "Congress" as the target of limitation; and the logic underlying other particular provisions may also have made it peculiarly awkward to apply them against states. But the reasoning behind Barron's contention clearly would have required state compliance with a vast number of Bill of Rights prohibitions whose general language and logic made them indistinguishable from the takings clause. If the Fifth Amendment phrase, "nor shall private property be taken for public use without just compensation" limited states, so too, it would seem, did the Fourth Amendment phrase "no warrants shall issue, but upon probable cause," the Eighth Amendment phrase "excessive bail shall not be required," and so on. Barron thus presented a question "of great importance," as Chief Justice Marshall acknowledged at the outset of his opinion for the Court. [20] But Marshall immediately added that the question was "not of much difficulty," and went on to dismiss Barron's argument in less than five pages.

One can quibble around the edges, [21] but the core of Marshall's argument is compelling. To be sure, the takings clause nowhere explicitly says that it ties the hands of the federal government only and not the states. But as Marshall explained, because state governments were already in place in the 1780's, the dominant purpose of the Constitution was to create, yet limit, a new central government. "limitations on power, if expressed in general terms, are naturally, and, we think, necessarily applicable to the government created by the instrument"-that is, the federal government. [22] Though he did not cite it by name, Marshall seems to have had in mind here the sweeping dictum of [Page 1199]

Hamilton's Federalist No. 83: "The United States, in their united or collective capacity, are the OBJECT to which all general provisions in the Constitution must necessarily be construed to refer." [23]

Close inspection of the original Constitution confirms the soundness of the Hamilton-Marshall rule of construction. In Article I, Section 9, for example, we find a purely general prohibition akin to the takings clause in its language and logic: "No Bill of Attainder or ex post facto Law shall be passed." Yet as Marshall forcefully noted, [24] this general prohibition limits only the federal government; hence the framers' inclusion of a separate clause explicitly limiting states, in Article I, Section 10: "No State shall ... pass any Bill of Attainder or ex post facto Law." The absence of any similarly explicit language limiting states in the takings clause cut strongly against Barron's claim. Had the framers of the clause meant to limit states, wrote Marshall, "they would have declared this purpose in plain and intelligible language," [25] like the "No State shall" phrasing of Article I, Section 10.

But does not the language of the First Amendment cut exactly the other way, suggesting that where the Bill of Rights aimed at limiting only the federal government, it used an explicit word like "Congress" to signal that intent? Once again, Marshall offered a careful parsing of Article I, Section 9 to drive home his point: "Some of [the clauses in this section] use language applicable only to congress: others are expressed in general terms." [26] If the word "Congress" in the First Amendment could justify applying the takings clause and other general wording in the Bill of Rights to the states, then the same should hold true for Article I, Section 9: the words "the United States" in the Section 9 clause-"No Title of Nobility shall be granted by the United States"-should logically imply that the general wording of the attainder and ex post facto clause of Section 9 applied against the states. Yet as we have seen, the Constitution plainly suggests otherwise. Marshall saw the language of Section 9 as especially relevant because it was "in the nature of a bill of rights," [27] as various Federalists had pointed out during the ratification period to counter Anti-Federalist concerns about the apparent absence of such a bill in the original Constitution. [28]

Purely as a matter of textual exegesis and application of lawyerly rules of construction, Marshall's argument is hard to beat. Why weren't the framers and ratifiers of the Bill of Rights entitled to rely on a natural and sensible rule of [Page 1200] construction implicit in the Constitution itself and made explicit by Publius in his influential defense of the document? [29]

The legislative history of the Bill of Rights confirms that its framers and ratifiers did so rely. Various state conventions endorsed amendments limiting the new central government, some phrased in general language, others using words explicitly targeted at the central government-"Congress," the "United States," and so on. [30] Yet no one ever suggested that the general language, simply because of its juxtaposition with other clauses worded differently, would limit state governments as well. When Madison distilled these endorsements into his own list of proposed limitations, he suggested that most of these limitations be inserted in Article I, Section 9. Following the rule of construction implicit in that Article, he used general language and explicit references to Congress indiscriminately. [31] The proposed location of these clauses made it clear that, however worded, they applied only against the federal government. But the first Congress eventually decided to put these amendments at the end of the original Constitution. There is no evidence that this change was anything but aesthetic. Nevertheless, the change had the unhappy effect of blurring the implicit rule of construction at work, creating an interpretive trap for the unwary, which Marshall gracefully avoided by keeping his eyes on Section 9.

Unlike state ratifying conventions, Madison believed that additional restrictions in favor of liberty should also be placed on state governments and said [Page 1201] so on the floor of the House; [32] but even more important for our purposes, he proposed a constitutional amendment that used explicit language to communicate this idea-the very same explicit language that John Marshall seemed to be asking for in Barron: "No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases." [33] Moments earlier, Madison had proposed that the following general language be inserted into Section 9: " N or shall the full and equal rights of conscience be in any manner, or on any pretext, infringed ... and the freedom of the press ... shall be inviolable." [34] Had this general wording, taken alone or in juxtaposition with references to Congress in nearby clauses, been understood to apply to states, Madison's "No state shall" proposal would have been horribly repetitive, eligible for inclusion in the department of redundancy department. [35] What's more, in limiting its list of rights that "No State shall" abridge to press, conscience, and juries, Madison's wording clearly suggested under the principle of expressio unius that states could do other things prohibited by the general language of his proposed Section 9 insert. That general language, for example, prohibited both establishment of religion and infringement of conscience. Madison's "No State shall" list included the latter but pointedly omitted the former, thus implying that states would continue to be free to establish churches. But if so, we are again driven to the obvious rule of construction that the general language about establishment-like all general language-applied only to the federal government.

Still further corroboration comes from Madison's speeches on the House floor. Whereas he candidly admitted that his proto-Tenth Amendment "may be considered as superfluous" and "unnecessary," he described his "No State shall" proposal, in very different language: "[T]his [is] the most valuable amendment in the whole list" [36]-valuable because it added something obviously not implicit elsewhere in general language. Yet he also noted that even this most valuable amendment would bind states only to "those particular rights" [37] listed in the "No State shall" clause, once again making clear that merely general language would not limit states. [38] [Page 1202]

So far, so good for Marshall's opinion. But what makes Barron's holding compelling is neither its technical parsing of Article I, nor its use of lawyerly rules of construction, nor even the narrow legislative history of the Bill of Rights in Congress. Rather, it is what Marshall near the end of his opinion called the "universally understood" historical background of the Bill of Rights. [39] In state convention after state convention in 1787- 88, Anti-Federalists voiced loud concerns about a new, distant, aristocratic, central government that was being called into existence. [40] Many ultimately voted for the Constitution only because Federalists like Madison promised to consider a Bill of Rights soon after ratification. Madison of course kept his word, and knew that if he had not, states' rightists might have called a second constitutional convention to repudiate the basic structure of the Constitution he had labored so hard to build. [41] In short, without the good will of many moderate Anti-Federalists, prospects for the new Constitution looked bleak in 1787-88; and a Bill of Rights was the explicit price of that good will. But the Bill of Rights that Anti-Federalists sought was a Bill to limit the federal government-not just for the sake of individual liberty, but also to serve the cause of states' rights. [42] Madison and his fellow Federalists could hardly have placated their critics, or won over their skeptics, by sneaking massive new restrictions on states into apparently innocuous general language. Nor would Anti-Federalists in Congress or in states have knowingly allowed such a trojan horse though the gates. Madison did openly advocate a small number of additional restrictions on states-clearly labeled as such in a package wrapped in the words "No State shall"-but even that modest proposal was too much for a Senate jealously guarding states' rights.

Barron's holding thus kept faith with both the letter and the spirit of the original Bill of Rights. We should not be surprised, then, that the decision in Barron was unanimous, or that the Court repeatedly and unanimously reaffirmed [Page 1203] Barron's rule over the next thirty-three years in cases involving the First, Fourth, Fifth, Seventh, and Eighth Amendments. [43]

B. The Barron Contrarians

Having worked hard to understand Barron, we now must work equally hard to understand the contrary view, especially if we are to make full sense of the language and logic of the Fourteenth Amendment. In the fifteen years before Barron, a considerable number of weighty lawyers implied in passing or stated explicitly that various provisions in the Bill did limit states. Writing for the Court in 1819, Justice William Johnson obliquely suggested that the Seventh Amendment's guarantee of civil juries applied to states; [44] and the following year he stated even more explicitly in a separate concurrence that the double jeopardy clause "operates equally upon both state and federal governments," [45] although even here, his statement was not free from ambiguity. He may simply have meant that the clause applied whenever either of two prosecutions for the same underlying conduct was federal, even if the other was by state officials in state court for a state law crime. That same year, however, the New York Supreme Court stated in dictum that the double jeopardy clause "operates upon state courts" even where both prosecutions were for state law crimes. [46] In 1824, this view of the double jeopardy clause was pressed in the Massachusetts Supreme Court, yet neither the government's attorney nor the judges appeared to challenge it-perhaps because even without the clause, the Commonwealth recognized a common law double jeopardy right at least as broad. [47] The following year, William Rawle published a widely read treatise on the Constitution in which he argued at length that virtually all the general [Page 1204] provisions of the Bill of Rights bound states. [48] And as late as 1833, the year Barron came down, we find Justice Baldwin on circuit implying that the Second and Fourth Amendments applied against states, [49] and Justice Story in his own treatise on the Constitution taking an uncharacteristically agnostic, even nonchalant, position on the whole matter:

It has been held in the state courts, (and the point does not seem ever to have arisen in the courts of the United States,) that [the Eighth Amendment] does not apply to punishments inflicted in a state court for a crime against such state; but that the prohibition is addressed solely to the national government, and operates, as a restriction upon its powers. [50]

1. The General Wording/Expressio Unius Theory

What were these lawyers and judges thinking? Some may simply have not given much thought to the Barron issue, especially where the case at hand was disposed of on other grounds. And a merely casual look at, say, the double jeopardy clause might lead a judge to assume it applied to states as well; for as New York Chief Justice Ambrose Spencer noted, the language of the clause was "general in its nature, and unrestricted in its terms." [51] Rawle gave more attention to the matter and added an expressio unius argument that the contrast between the First Amendment's specific reference to Congress and the general language of various later amendments confirmed that they, unlike the First, applied to states. [52] As we have seen, Marshall refuted both of these arguments by his careful attention to Article I, Section 9. (What's more, the framers' reference to "Congress" in the First Amendment had nothing to do with the Barron issue; rather, it was probably an expression of the strong states' rights view that, unlike the areas addressed by later amendments, the First encompassed domains where Congress lacked enumerated power under Article I, Section 8.) [53] When forced to focus on this issue and only this issue in Barron, and when confronted by Marshall's textual analysis and historical narrative, Johnson and Baldwin reversed course, and Story fell into line.

Barron, however, was hardly the last word, and the contrary view continued to find expression over the next thirty-three years. At times it appears that lawyers, having simply never heard of Barron and its progeny, casually assumed, [Page 1205] along with Spencer or Rawle, that the general language of various provisions made application to states obvious. Thus in 1845, the Illinois Supreme Court noted in passing that the Fifth Amendment's due process clause limited state action, [54] and two years later Ohio Attorney General Stanberry glibly conceded in oral argument before the U.S. Supreme Court that double jeopardy was "forbidden, as well to the States as to the general government, by the fifth ... amendment ." [55] Like Justice Johnson thirty years earlier, however, Stanberry may have meant to limit his concession to situations where one of the two prosecutions was federal, and the other state. Most important for our purposes, we must note that several capable lawyers in the Thirty-ninth Congress, the Congress that drafted the Fourteenth Amendment, seemed unaware of Barron until the case was brought to their attention by name by John Bingham, the principal draftsman of Section One of the Amendment. [56]

2. The Declaratory Theory

It is tempting to dismiss all these folks as dolts, but we must resist. Modern academic law schools did not exist. Supreme Court reports were not as widely available as nowadays. And constitutional law took a back seat to common law in its importance to everyday legal practice. (Thus, one of the biggest constitutional issues of the antebellum era was whether the vast domain of common law was state law or federal law.) Would-be lawyers began their training with Blackstone's Commentaries, not United States Reports.

But once we remember the centrality of Blackstone and the common law, we can see the Barron issue in a new light. For the common law method involved careful examination of codes, charters, statutes, and the like in an effort to distill their animating principles-the spirit of the common law. Judges did not simply "make up" common law; they "found" it in authoritative legal sources, such as Magna Charta, the Petition of Right, the Habeas Corpus Act, and so on. Thus, even if the Bill of Rights did not, strictly speaking, bind the states of its own legislative force, was it not at least declaratory of certain fundamental common law rights? And should not these declarations by We the People inform a state judge's analysis?

Thus we find Rawle in 1825 going beyond his narrow expressio unius argument by claiming that certain amendments "form parts of the declared rights of the people." [57] Tellingly, he stressed the preamble of the Second Amendment as "a declaration that a well regulated militia is necessary to the security of a free state." [58] Only after discussing the preamble alone did he [Page 1206] quote its "corollary" that "the right of the people to keep and bear arms shall not be infringed," whose language, Rawle noted, was perfectly general. [59] Rawle then immediately invoked the English Bill of Rights of 1689 and Blackstone's analysis of the English common law right to bear arms. [60] For Rawle, all this suggested that the Second Amendment bound states. Nor did the Tenth Amendment stand in the way, for Rawle read its final clauses as acknowledging that "the people" had certain reserved rights in contradistinction to-and against-"the states." [61]

Rawle's analysis and language here were perhaps no more than suggestive, but they sketched out lines of argument that later Barron contrarians would develop more fully. Narrowly understood, the "declaratory" view of the Bill of Rights could provide even state courts with principled rules of decision, both procedural and substantive, when no state statute spoke directly to a given issue. Such, for example, was the situation in the New York and Massachusetts double jeopardy cases in the 1820's. More broadly, the Bill could serve as a source of maxims, both political and judicial. Politically, a maxim like the preamble to the Second Amendment could warn the people of any state to be wary of any legislature, even a state legislature, that sought to disarm them. [62] Judicially, maxims drawn from the Bill of Rights could generate a set of rules of construction-what we would call today "clear statement rules"-obliging a state legislature to speak with unmistakable clarity before trenching on a right "declared" in the U.S. Constitution. And in the hands of a strong believer in fundamental or natural rights, the "declaratory" view of the Bill could have even more far-reaching consequences.

As modern day legal positivists, we tend to view the Bill as creating or conferring legal rights. But the congressional resolution accompanying the Bill explicitly described some of its provisions as "declaratory." [63] To a nineteenth-century believer in natural rights, the Bill was not simply an enactment of We the People as the Sovereign Legislature bringing new legal rights into existence, but a declaratory judgment by We the People as the Sovereign High Court that certain natural or fundamental rights already existed. [64] Under this view, the [Page 1207]

First Amendment was not merely an interpretation of the positive law code of the original Constitution, declaring that Congress lacked Article I, Section 8 enumerated power to regulate religion or suppress speech; the Amendment was also a declaration that certain fundamental "rights" and "freedoms"-of assembly, petition, speech, press, and religious exercise-preexisted the Constitution. Why else, it might be asked, did the Amendment speak of "the" freedom of speech, implying a preexisting entitlement? [65] The Ninth and Tenth Amendments did more than make explicit rules of construction for interpreting the Constitution as a positive law code; they also declared that certain "rights" and "powers" were retained by "the people" and "reserved" to them in contradistinction to "states."

Technically speaking, perhaps the Bill did not bind state governments of its own legislative force. But under the strong declaratory view, the result was virtually the same. An honest state court would be bound-though the precise nature of the obligation, legal or moral, was somewhat fuzzy-to respect "declarations" of the High Court of We the People that certain "rights" and "freedoms" existed. [66] Unlike Rawle's expressio unius argument, demolished by Barron, this was an argument that states might be constrained even by the First Amendment-at least, by those clauses of the First Amendment that spoke of "rights" or "freedoms." (The establishment clause most distinctly did not.)

The obligation here would seem at least as strong as the duty of the honest common law judge to consider well reasoned precedents from well respected sister courts in other jurisdictions. Or to take an example from modern day Supreme Court case law, the obligation roughly mirrored the later rule that federal judges should consult state constitutions and state statutes to determine what punitive practices are violations of contemporary morality and thus "cruel [Page 1208] and unusual" within the meaning of the Eighth Amendment. [67] More expansively, it could be argued that the ratification of the Bill by the collective state legislatures estopped these bodies from denying that certain rights and freedoms existed. How, for example, could a state legislature disarm its people after it had ratified a document declaring that "A well regulated Militia [is] necessary to the security of a free State?"

But how does all this fancy theorizing deal with the obvious objection that even if the Bill "declared" "rights" and "freedoms," it declared them only against the federal government? How could these declarations become transmogrified into limitations on states? There are really two objections here-one jurisprudential, and one constitutional. The jurisprudential objection is best framed by the work of the early twentieth-century legal analyst, Wesley Hohfeld, who insisted that "rights" logically implied correlative "duties" imposed on discrete persons or entities. [68] The nature of a right is thus defined every bit as much by the party against whom the right runs as by its substantive sweep. The analytic truth of Hohfeld's insight is hard to quarrel with, but it would be anachronistic to read this insight back into all rights rhetoric, especially natural rights rhetoric, in mid- to late-nineteenth-century America. Hohfeld, after all, was responding to nineteenth-century judges and lawyers who were using the word "right" more loosely-sloppily, Hohfeld argued.

This emphasis on the word "right" also helps answer the constitutional objection rooted in Barron. Marshall insisted on reading the Bill of Rights with the same rules of construction implicit in the original Constitution, especially Article I, Section 9. This is a view deeply supportive of the vision of the Bill that I have elsewhere elaborated-a view of the Bill as fundamentally analogous to the original Constitution, intertwining structure (especially federalism) and rights. [69] But the declaratory view insisted that rights were different from structure. Here was a powerful wedge to break the linkage Marshall sought to forge between Article I, Section 9 and the Bill of Rights. For Section 9 never invoked the word "rights" in either its general or specific language. (Indeed, the only place where the word "right" appeared in the original Constitution was-of all places!-the Article I, Section 8 copyright clause. [70]) The closest thing Section 9 offered to a declaration of right was its affirmation of "the [Page 1209] Privilege of the Writ of Habeas Corpus"-and we should note that Rawle insisted that this and only this provision of Section 9 bound states. [71] The Barron contrarians, then, denied that Section 9 was, as a general matter, truly "in the nature of a bill of rights." [72] The first ten amendments, by contrast, were commonly described as such, and used the words "rights" and "freedoms" over and over-in no less than six different amendments. [73] Unlike Section 9, then, the Bill truly declared rights that, according to contrarian ideology, bound all governments.

This way of thinking would have been deeply foreign to many of the men who had clamored for a Bill of Rights in the 1780's. The word "right" had no talismanic natural law significance; after all, many sought a Bill to confer-or declare-states' rights, once again revealing the original intertwining of rights and structure. [74] So too, a feudal inheritance made it quite easy for many in the 1780's to intuit the idea Hohfeld would resurrect and refine after the heyday of natural rights talk in the mid-nineteenth century. Particularistic customs, charters, and the like gave distinct persons or entities distinct rights or privileges against distinct entities, but not others. [75] Indeed, much of the Declaration of Independence and its predecessor petitions can be seen as backward-looking invocations of particularistic rules and customs.

The Barron contrarians, by contrast, emphasized the Declaration's more sweeping and universalizing Enlightenment rhetoric of "self-evident truths" and the "inalienable rights" of "all men." Contrarians self-consciously sought to distill the pure essence of rights-citizen rights, not state rights-that had been blended with structural issues in the Bill. [76] As an interpretation of the original Bill, their view had huge problems, but as a vision of the future Bill, it deserves our careful consideration-for it was a view that would ultimately prevail in the language and logic of the Fourteenth Amendment. [77]

The clearest contrarian articulations occurred in conscious reaction to Barron itself. In the 1840 case of Holmes v. Jennison, former New Hampshire Governor C.P. Van Ness politely but boldly attacked Barron in his oral argument before the Supreme Court: "With the utmost deference I beg leave to [Page 1210] observe, that in my humble judgment, an error was committed by the Court ...." [78] After going out of his way to remind the Justices that the original amendments to the Constitution were "commonly called the bill of rights," he distinguished between certain provisions that were merely "limitations of power" and others that "are to be understood as declarations of rights." [79] This latter category, argued Van Ness, encompassed "absolute rights, inherent in the people, and of which no power can legally deprive them," "principles which lie at the very foundation of civil liberty, and are most intimately connected with the dearest rights of the people , .... principles which ... deserve to be diligently taught to our children, and to be written upon the posts of the houses, and upon the gates." [80] Though not clearly developed, here lay seeds for a kind of selective incorporation based on whether a particular clause of the Bill was a mere "limitation of power" or alternatively a "declaration of right."

Far more elaborate were various opinions of the Supreme Court of Georgia in the late 1840's and early 1850's, two of which were authored by Chief Justice Joseph Henry Lumpkin. In the first, Nunn v. Georgia, Lumpkin wrote that he was "aware" of contrary rulings (including, presumably Barron), but nevertheless invoked the Second Amendment to void a state statute. [81] Lumpkin began by emphasizing English common law rights that preexisted state and federal constitutions. For him, state constitutions "confer no new rights on the people which did not belong to them before." [82] So too, the federal Bill of Rights, "in declaring that the right of the people to keep and bear arms, should not be infringed, only reiterated a truth announced a century before, in the English Bill of Rights of 1689." [83] Like Rawle and Van Ness before him, Lumpkin stressed the Bill's declaratory and didactic nature. The people, wrote Lumpkin, adopted the Bill "as beacon-lights to guide and control the action of state legislatures, as well as that of Congress. If a well-regulated militia is necessary to the security of the State of Georgia and of the United States, is it competent for the Georgia General Assembly to take away this security, by disarming the People?" [84] Like Rawle, Lumpkin seemed to deny that the Tenth Amendment was a purely state rights provision, for he read it to imply that "the people" had certain rights in contradistinction to the "states." And in asking the question whether arms- bearing was "a right reserved to the [Page 1211] States or to themselves i.e., the people ," [85] Lumpkin found dispositive the language of the Second Amendment declaring a "right of the people."

Lumpkin reiterated and elaborated these themes in the 1852 case of Campbell v. Georgia, in which he explicitly cited Barron but once again held that the Bill's provisions generally bound states. [86] Though he did not "stop to examine" Barron in detail, [87] Lumpkin wisely avoided the expressio unius argument that Marshall had demolished and tried to outflank Marshall's historical narrative by widening the time frame. Once again, he began not with the framing of the federal Bill of Rights but with the ancient landmarks of the common law: "Magna Charta-the Petition of Right-the English Bill of Rights of 1689 -and more especially, ... the Act of Settlement, in Britain." [88] By emphasizing the common law background, Lumpkin could plausibly portray the federal Bill of Rights as added "out of abundant caution" to clarify preexisting legal rights. [89] And this declaratory purpose, Lumpkin argued, clearly justified application of the Bill to states, as emphasized by his own italics: The Bill of Rights' purpose "was to declare to the world the fixed and unalterable determination of our people, that these invaluable rights ... should never be disturbed by any government." The Bill was "our American Magna Charta." [90]

Lumpkin then began a discussion about whether unenumerated "natural rights of man" "independently of [rights specified] in written constitutions" could ever limit American legislatures, quoting and paraphrasing broad natural law passages from various U.S. Supreme Court cases. [91] For reasons of institutional competence, Lumpkin did not "intend to put our opinion ... upon this foundation, however solid it may be." [92] Given that "our ideas of natural justice are vague and uncertain," perhaps a wide-open hunt for natural law would allow judges too much discretion--freedom to make, rather than find, natural law. [93] "But," Lumpkin argued, "as to questions arising under these amendments, there is nothing indefinite. The people of the several States, by adopting these amendments, have defined accurately and recorded permanently their opinion, as to the great principles which they embrace ...." [94] If this last argument [Page 1212] looks vaguely familiar, it should. A century later another Southern judge-one Hugo LaFayette Black-would make a strikingly similar argument on behalf of his crusade to "incorporate" the Bill of Rights against the states.

C. The Contrarian Context

In their belief that Barron was wrongly decided, men like Van Ness and Lumpkin found themselves in a distinct minority among antebellum lawyers; but time was on their side. As the years wore on, changes were occurring in America that made major premises of the original Bill of Rights-premises faithfully followed in Barron-more and more problematic. Regardless of whether the original Bill was intended to apply against states, it became increasingly plausible to think that the Constitution should be amended to overrule Barron.

1. Technology, Geography, and Ideology

Consider first the broad technological changes in the first half of the nineteenth century. In the 1780's, Anti-Federalists had feared that national lawmakers would literally be too far removed from their constituents for mutual confidence to develop; congressmen would lack current information about constituent desires, and citizens would find it difficult to monitor their federal representatives. [95] Hence, special constitutional restrictions on Congress made sense. But over the next eighty years, improved roads, new canals, and the invention of the railroad and the telegraph revolutionized transportation and communication, diminishing the feeling that national lawmakers were qualitatively more distant than state ones. Nor was the Congress of the mid-nineteenth century drastically smaller, and thus more subject to cabal and intrigue, than its state counterparts. The specter of a thirteen-man House of Representatives that Patrick Henry had conjured up in 1788 [96] seemed rather fanciful in 1859, [Page 1213] when the size of the lower House had swelled to over 200 members-a number that made several state lower houses look rather small by comparison.

Geographic expansion also worked ideological inversions. In the 1780's, state governments had distinguished pedigrees going back to their respective colonial foundings, while the national government proposed by Madison and his fellow Federalists was something altogether novel. [97] Prudence, if nothing else, dictated special skepticism about the new government, and special restrictions on it. By contrast, in the antebellum era, the federal government was well established, while various new states were springing to life as the nation pushed inexorably westward (an expansion spurred on, of course, by the technological advances we have just noted). But these new states gave rise to a puzzle: why should a territorial legislature, as an agent of Congress, be bound by all the restrictions of the federal Bill of Rights when state governments were not? Indeed, did it make any sense that immediately upon admission to statehood, a territory could ignore all sorts of salutary restraints in the Bill that had previously applied to it? Congressman John Bingham apparently thought not, for in considering Oregon's proposed admission to the Union in 1859, he declared:

In my judgment, sir, this constitution, framed by the people of Oregon, is repugnant to the Federal Constitution, and violative of the rights of citizens of the United States. I know, sir, that some gentlemen have a short and easy method of disposing of such objections as these, by assuming that the people of the State, after admission, may, by changing their constitution, insert therein every objectionable feature which, before admission, they were constrained to omit .... [But I deny] that the States are not limited by the Constitution of the United States, in respect of the personal or political rights of citizens of the United States .... .... ... [W]henever the Constitution guaranties to its citizens a right, either natural or conventional, such guarantee is in itself a limitation upon the States .... [98]

As we shall see, Bingham would later write this philosophy into Section One on the Fourteenth Amendment.

[Page 1214]

Consider next the libertarian track record of central versus local government. The American Revolution had featured local colonies fighting an imperial center in the name of both freedom and federalism. In light of their experience with imperial arrogance and oppression on the one hand, and the heroic roles played by local governments in resisting oppression on the other, many Americans in the 1780's associated a strong central government with tyranny and a strong state government with freedom. This association was of course strengthened by the events in the following decade, with the Virginia and Kentucky legislatures leading the charge against the federal Sedition Act. But in the ensuing decades, it would be hard to argue that the central government acted qualitatively more repressively than local ones. Why, then, the Barron double standard?

In some situations, the very line separating state and federal government began to blur. We have already seen in passing the tricky double jeopardy questions raised when both state and federal governments prosecuted a defendant for the same underlying conduct; but the free press clause posed an analogous puzzle that received far more public attention. In the 1830's, various states sought to ban "incendiary" publications and wanted federal officials to cooperate by closing the mails to such publications. Would such censorship constitute federal action violative of the First Amendment or state action beyond the Amendment's scope? [99]

To an increasing number of friends of free speech, this knotty question, even if answerable, seemed to miss the point. Why should the right of citizens to publish controversial views turn on fine legal distinctions about which government's hands had really wielded the censor's red pen? If "incendiary" publications dealt with national political issues, why was a state tax on national speech any more constitutional than a state tax on the national bank? [100] And even if publications addressed only local matters, did not the Constitution's requirement of republican government [101] and its overarching principle of popular sovereignty oblige state governments to allow citizens the greatest latitude in the expression of political opinions? [102] As to speech and press, then, a growing number of Americans were coming to appreciate the wisdom of Madison's failed "No State shall" amendment, which had tried to make clear [Page 1215] that state officials should be no more free to censor than their federal counterparts.

Madison, of course, in both The Federalist No. 10 and in the First Congress had argued that state governments were more likely to tyrannize minorities, [103] but as we saw earlier, the Senate rejected his original "No State shall" amendment. Part of the reason was that in the 1780's, "liberty" was still centrally understood as public liberty of democratic self- government-majoritarian liberty rather than liberty against popular majorities. [104] Madison thought otherwise, but was a man ahead of his time. By the Civil War era, the general intellectual tide was shifting, as reflected in the publication in 1859 of John Stuart Mill's classic tract, On Liberty-on individual liberty.

2. Slavery

But surely, to say all this about antebellum America is to rehearse Hamlet without the Prince, for we have yet to confront the issue that shattered the founders' Union: slavery. As important as canals, railroads, and telegraph lines were, none of these innovations was more significant than the cotton gin, which killed any chance that slavery might prove so unprofitable that it could be abolished without great economic dislocation. And no issues of geographic expansion posed by the new territories were as explosive as slavery and race-the subjects, indeed, of Bingham's specific objections to the Oregon Constitution. Nor did any issue place the libertarian track record of federal versus state governments in stronger light than did slavery. And on this question, states did not sparkle. Slavery was almost exclusively a creature of state law. To be sure, the federal government had supported the slave system with fugitive slave laws and other policies, including a postal system that helped exclude abolitionist mailings from distribution in the South. (These mailings, of course, were the main targets of the 1830's bans on "incendiary" literature.) Yet a major platform of the Free Soil and Republican Parties in the 1840's and 1850's was that the Constitution forbade any federal involvement with slavery: freedom was national; slavery, local- hence the popular slogan "Freedom National," a slogan that would have sounded quite odd in the 1780's and 1790's. [105] Finally, of course, the abject plight of blacks dramatized the danger to liberty posed by even majoritarian government.

[Page 1216]

The structural imperatives of the peculiar institution led slave states to violate virtually every "right" and "freedom" declared in the Bill- not just rights and freedoms of slaves, but of free men and women too. [106] Simply put, slavery required repression. Speech and writing critical of slavery-even if plainly religious or political in inspiration-was incendiary and had to be suppressed in Southern states, lest slaves overhear and get ideas. [107] Teaching slaves to read (even The Bible) was a criminal offense punished severely in some states. [108] In a society that saw itself under siege after Nat Turner's rebellion, [109] access to firearms had to be strictly restricted, especially to free blacks. [110] The problem of fugitive slaves created further pressures on civil liberties that made life treacherous indeed for free blacks. Typically, all Southern blacks were legally presumed to be slaves, subject to arbitrary "seizures" of their "persons," triable as fugitives without juries in proceedings lacking basic rudiments of due process and, if adjudged to be escaped slaves, subject to great cruelty as a warning to others. [111]

To counter this regime of repression, abolitionist and antislavery lawyers could not simply rely on positive law, for slavery itself was deeply embedded in positive law. Beginning in the 1830's, abolitionist lawyers developed increasingly elaborate theories of natural rights, individual liberty, and higher [Page 1217] law-theories far more compatible with a "declaratory" reading of the federal Bill than with Barron's technical legalism. [112]

The fabric of the original Bill of Rights, interweaving freedom and federalism, was unraveling under the strain of slavery. And once the Civil War came, Barron seemed plainly anachronistic. For if the years leading up to the Revolutionary War had dramatized the special danger of central tyranny, leading to Barron's Bill, the Civil War era demonstrated that states required constitutional restraints as well.

The abolition of slavery in the Thirteenth Amendment-the first federal constitutional amendment to restrict state law-was obviously the place to start. But was it enough? When the Thirty-ninth Congress convened in December 1865, various unrepentant Southern governments were in the process of resurrecting slavery de facto through the infamous Black Codes. As with the slavery system itself, the new codes would invariably require systematic state abridgments of the core rights and freedoms in the Bill of Rights. These abridgments would of course hit blacks the hardest, but the resurrection of a caste system would also require repression of any whites who might question the codes or harbor sympathy for blacks. [113] In response, the Thirty-ninth Congress drafted Section One of the Fourteenth Amendment.

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II. THE EASY CASE FOR INCORPORATION

A. The Text of the Fourteenth Amendment

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

So reads the second sentence of the Fourteenth Amendment-a sentence around which the entire incorporation debate has swirled. For however much they disagree about everything else, all the participants in the incorporation debate have found common ground in the belief that the answer to the debate lies in these words. In light of the stakes involved, and the brevity of the text, we would do well to weigh each word with care. And when we do, we shall see that the textual argument for incorporation-of a certain sort-is remarkably straightforward.

1. "No State shall ..."

For those in the incorporation camp, the key sentence gets off to a great start. Anyone paying the slightest attention to constitutional text would find the same phrase in Article I, Section 10 imposing various limitations on states, including several key rights designed principally for the benefit of in-state residents: "No State shall ... pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility." In 1810, Chief Justice Marshall's opinion for the Court in Fletcher v. Peck declared that the language of Article I, Section 10 "may be deemed a bill of rights for the people of each state" [114]-a phrase repeated by the Supreme Court in 1853 and again in 1866, the same year in which the Fourteenth Amendment was drafted. [115] Of course, the Court did not mean to suggest that the catalogue of Section 10 rights was identical to that set out in the first ten amendments-otherwise the entire Barron and incorporation debates would be moot. But the language of Fletcher and its progeny does confirm the rhetorical resonance between the phrase "No State shall" and the idea of a federally enforceable "bill of rights" against state governments. Madison had intuited this resonance a dozen years before Fletcher when he proposed to include in his "Bill of Rights" an amendment that "No State shall" abridge various rights of religion, expression, and jury trial.

[Page 1219]

Far more dramatic evidence of this resonance comes from Barron, where a unanimous Supreme Court stated that, had the framers of the original Bill of Rights meant to impose its rules on states, they would have used the Article I, Section 10 phrase "No State shall" or some reasonable facsimile thereof. But if the framers of the original Bill were entitled to rely on rules of construction implicit in the Philadelphia Constitution and made explicit by Publius in The Federalist No. 83, surely the framers of the Fourteenth Amendment were entitled to rely on the authoritative language of Barron itself. The Supreme Court Justices in Barron asked for "Simon Says" language, and that's exactly what the Fourteenth Amendment gave them.

Earlier drafts of the key sentence had omitted the words "No State shall" in favor of other formulations, but as Congressman John Bingham explained several years after the Amendment's adoption, he rewrote Section One in response to and in reliance upon Barron:

In reexamining that case of Barron, Mr. Speaker, after my struggle in the House in February 1866, ... I noted and apprehended as I never did before, certain words in that opinion of Marshall. Referring to the first eight articles of amendments to the Constitution of the United States, the Chief Justice said: "Had the framers of these amendments intended them to be limitations on the powers of the State governments they would have imitated the framers of the original Constitution, and have expressed that invention." Barron vs. The Mayor, &c., 7 Peters, 250.

Acting upon this suggestion I did imitate the framers of the original Constitution. As they had said "no State shall emit bills of credit, pass any bill of attainder, ex post facto law, or law impairing the obligations of contracts;" imitating their example and imitating it to the letter, I prepared the provision of the first section of the fourteenth amendment as it stands in the Constitution .... [116]

2. "... make or enforce any law which shall abridge ..."

As the key sentence rolls on, the incorporation reading gains steam. Various critical words of the next phrase-"make," "any," "law," and "abridge,"-call to mind the precisely parallel language in parallel sequence of the First Amendment-"make," "no," "law," and "abridging." [117] There are only three significant differences here.

First, the Fourteenth Amendment imposes a prohibition on states, whereas the First explicitly limits "Congress." But this is of course exactly the point of incorporation. And what better way to make clear that even rights and freedoms in the original Bill of Rights that explicitly limited "Congress" should hereafter [Page 1220] apply against states than by cloning the language of the First Amendment? (The word "abridge" in the Fourteenth Amendment is especially revealing, for nowhere outside the First Amendment had this word appeared in the Constitution before 1866). Thus, the Fourteenth Amendment announced its intention to go beyond the expressio unius arguments of William Rawle and John Barron, as had Lumpkin in Campbell, where the Georgia Chief Justice explicitly included First Amendment freedoms in his catalogue of rights binding states. [118]

Second, the Fourteenth Amendment uses the word "any" where the First uses "no," but here again, there is an obvious reason. Following the "Simon Says" rules of Barron "to the letter," the Fourteenth uses negative phrasing ("No State shall ...") where the First used affirmative ("Congress shall ..."). The substitution of "any" for "no" simply balances out the initial inversion.

Finally, the Fourteenth Amendment speaks of law "enforce[ment]" as well as law making. Once again, this makes perfect sense if its purpose was to incorporate the rights and freedoms of the original Bill. Many of the Bill's provisions, especially those in Amendments V-VIII, dealt centrally with the enforcement of laws by executive and judicial officers. However suggestive the tracking of the First Amendment may be, there is no suggestion thus far that only the First Amendment is to be incorporated.

3. "... the privileges or immunities ..."

Of course, my last sentence was a bit of a cheat; there is no suggestion "thus far" that only the First Amendment is to be incorporated because it is not yet clear what rights shall not be "abridge[d]" by states. The words we have considered so far are wonderfully suggestive-exactly what one would expect if incorporation were a goal of the Fourteenth Amendment-but hardly definitive. If the Fourteenth Amendment had stated that "No State shall make any law abridging the right to spit on sidewalks," no one could argue with a straight face for incorporation of the federal Bill of Rights.

Happily, the final words of the first clause are very different, and once again exactly what one would expect if incorporation of a certain sort-which I shall soon elaborate-were intended. Consider first the words "privileges" and "immunities." Now, these exact words do not appear in the Bill of Rights, but the words "right[s]" and "freedom[s]" speckle the Bill. [119] The plain meanings of these four words are virtually synonymous; indeed, the Oxford English Dictionary definition of "privilege" includes the word "right"; and of "immunity," "freedom." [120] What could be more common today than to speak of the [Page 1221] "privilege" against compelled self-incrimination, or the "immunity" from double prosecution? Nor is modern usage here any different from that of the eighteenth and nineteenth centuries. As Michael Kent Curtis observes in his illuminating and powerfully researched book on incorporation, the "words rights, liberties, privileges, and immunities, seem to have been used interchangeably." [121] To pick only one eighteenth-century example with obvious implications for the incorporation debate, the entitlements to civil and criminal juries, labeled in the Sixth and Seventh Amendments as "right s ," were described by the 1775 Declaration of the Causes and Necessity of Taking Up Arms as the "inestimable privilege of trial by jury." [122] A couple of generations later, Circuit Justice William Johnson described a congressional bill of 1822 as "in nature of a bill of rights, and of privileges, and immunities" of inhabitants of the Florida territory. [123] Among the rights listed in the bill were "freedom of religious opinions;" "the benefit of the writ of habeas corpus;" and protections against "excessive bail," "cruel and unusual punishments," and confiscation without "just compensation"-all phrased almost identically with their federal Bill of Rights counterparts. [124] Only weeks before adopting the Fourteenth Amendment, Congress passed the Civil Rights Act of 1866, widely seen as the statutory precursor of Section One. In draft, the Act spoke of "civil rights and immunities," leading its sponsor to play the role of law dictionary: "What is an immunity? Simply 'freedom or exemption from obligation ...."' [125]

We have already noted that most American lawyers began their legal education with Blackstone and the common law. When we turn to Blackstone, we find the words "privileges" and "immunities" used to describe various entitlements embodied in the landmark English "Charters of liberty" of Magna Charta, the Petition of Right, the Habeas Corpus Act, the English Bill of Rights of 1689, and the Act of Settlement of 1700. [126] As we have seen, these English documents were the fountainhead of the common law, and the widely understood source of many particular rights that later appeared in the federal Bill, sometimes in identical language. [127] After invoking Blackstone and the [Page 1222] above-listed landmarks, Chief Justice Lumpkin's opinion in Campbell unsurprisingly described various rights in the federal Bill as "privileges"-including the right at issue in Campbell itself, the right to be confronted with witnesses. [128] Lumpkin's ideas about Barron may have been unorthodox in 1852, but his language was utterly conventional; that same decade, the Supreme Court in Dred Scott labeled the entitlements in the federal Bill "rights and privileges of the citizen." [129]

4. "... of citizens of the United States;"

But even once we recognize that various "rights" and "freedoms" in the Bill are in every respect and for every purpose "privileges" and "immunities," there remains one final textual stumbling block. Can we really say that the Bill's "rights" and "freedoms" are truly privileges and immunities of "citizens of the United States?"

Of course we can. In ordinary, everyday language we often speak of the United States Constitution and Bill of Rights as declaring and defining rights of Americans as Americans. Surely our Constitution is not centrally about declaring, say, the rights of Frenchmen qua Frenchmen, or the Chinese qua Chinese. This ordinary, everyday understanding of the Constitution is emblazoned in the Preamble in words quite familiar to every generation of Americans since the Founding: "We the People of the United States, in Order to ... secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States."

This ordinary understanding is not in the least bit damaged by the technical objection to incorporation that Professor Louis Henkin has raised: "[T]he provisions of the Bill of Rights are not rights of citizens only but are enjoyed by non-citizens as well." [130] Surely the fact that Americans may often extend many benefits of our Bill to, for example, resident aliens-for reasons of prudence, principle, or both-does not alter the basic fact that these rights are paradigmatically rights of and for American citizens. Indeed, others may enjoy certain benefits only insofar as they interact with American citizens-typically because they either live on soil governed by American citizens or do things with important effects on American citizens. Peripheral applications of the Bill should not obscure its core.

In any event, Henkin's technical objection collapses under the weight of its own anachronism. At the time of the Fourteenth Amendment, the best [Page 1223] known case on the scope of the Bill of Rights was none other than Dred Scott, which involved, among other issues, questions arising under the due process clause of the Fifth Amendment. Dred Scott declared the rights in the Bill to be not simply privileges, but "privileges of the citizen. " [131] This passage must be read in combination with the rest of the opinion, holding that because Dred Scott was not a citizen of the United States, he could not enjoy the privilege of diversity jurisdiction-or indeed, any of the "rights, and privileges, and immunities, guarantied by the Constitution to the citizen." [132] The central meaning and logic of the opinion, which took pains to stress the words of the Preamble, [133] was that the Constitution and the Bill of Rights were ordained and established by citizens of the United States, and for their benefit only.

Surely the framers of the Fourteenth Amendment were entitled to rely on Supreme Court interpretations in Dred Scott no less than in Barron, even as they sought to overrule them using "Simon Says" language suggested by the Court itself. [134] And once again, it is clear that they did so rely. John Bingham, the main author of Section One, not only cited to Dred Scott in a speech before the House in early 1866, but quoted the following key language: "The words 'people of the United States' and 'citizens' are synonymous terms." [135] In the Senate debates on the Fourteenth Amendment, the most extended and authoritative discussion of Section One came from Jacob Howard, and he too made plain that the language chosen was in response to Dred Scott: [136]

[I]t is a fact well worthy of attention that the course of decision in our courts and the present settled doctrine is, that all these immunities, privileges, rights thus guarantied ... or recognized by [the first eight amendments to the Constitution] are secured to the citizen solely as a citizen of the United States ....

Though many aspects of Dred Scott were highly offensive to members of the Thirty-ninth Congress, there was widespread support for the idea that the Bill of Rights was paradigmatically, even if not exclusively, a catalogue of privileges and immunities of "citizens." [137] Nor was this locution anything new or startling. In both Nunn and Campbell, for example, Chief Justice Lumpkin had described the Bill of Rights as protecting "citizens." [138]

[Page 1224]

5. "... nor shall any State deprive any person of life, liberty, or property, without due process of law;"

Henkin's technical objection to incorporation does not merely dissolve; it boomerangs. By focusing our attention on Dred Scott and citizenship, Henkin unwittingly destroys another more familiar technical argument against incorporation. Many Commentators (Raoul Berger most stridently) have claimed that if the privileges or immunities clause was designed to incorporate the rights and freedoms of the Bill, the clause would incorporate the Fifth Amendment's due process requirement and thereby render the Fourteenth Amendment's due process clause redundant. [139] Berger's claim has loomed especially large because Justice Black, the leading judicial proponent of total incorporation, repeatedly ducked technical questions about the relationship between Section One's privileges or immunities and due process clauses. Instead, Black clung to the simple but vague formulation that the Fourteenth Amendment "as a whole" effected incorporation. [140] Professor John Hart Ely, while generally supportive of incorporation, went even further in legitimizing Berger's technical objection by frankly conceding the redundancy point. [141]

But we can now see why Berger's technical objection collapses, like Henkin's, and for the same reason. By incorporating the rights of the Fifth Amendment, the privileges or immunities clause would, under the precedent of Dred Scott, have prevented states from depriving "citizens" of due process. Bingham, Howard, and company wanted to go even further by extending the benefits of state due process to aliens. But for this, a special clause was needed speaking of "persons," not "citizens." As Bingham explained his amendment on the floor of the House:

Is it not essential to the unity of the people that the citizens of each State shall be entitled to all the privileges and immunities of citizens [of the United States]? Is it not essential ... that all persons, whether citizens or strangers, within this land, shall have equal protection in [Page 1225] every State in this Union in the rights of life and liberty and property? [142]

A few weeks later, Bingham reiterated the point in debates over the Civil Rights Act of 1866 when he proposed to substitute the word "inhabitant" for "citizen": "[A]re we not committing the terrible enormity of distinguishing here in the laws in respect to life, liberty, and property between the citizen and stranger within your gates .... Your Constitution says 'no person,' not 'no citizen,' 'shall be deprived of life, liberty, or property,' without due process of law." [143]

Howard's explanation to the Senate was identical. After explaining that the privileges and immunities of citizens of the United States included "the personal rights guarantied and secured by the first eight amendments of the Constitution"-a passage we shall return to later-he patiently elaborated that the subsequent clauses of Section One were needed to "disable a State from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State." [144] On this issue as well, the views of Bingham and Howard were widely shared by their Reconstruction colleagues. [145] Indeed, Section One's distinction between the rights of citizens and those of aliens stretches back to its earliest draft in committee: "Congress shall have power to ... secure to all citizens ... the same political rights and privileges; and to all persons in every State equal protection in the enjoyment of life, liberty, and property." [146]

But we have yet to feel the full zing of the anti-incorporation boomerangs, for just as Henkin's objection destroys Berger's, so Berger's emphasis on due process undermines Henkin. It would be odd to think that the words "due process" in the Fourteenth Amendment were intended to mean something very different than they did in the Fifth. Thus, when Andrew Jackson Rogers asked Section One's main architect, John Bingham, what he meant by "due process of law," Bingham tartly replied, "courts have settled that long ago, and the gentleman can go and read their decisions." [147] In 1866, the definitive statement of the meaning of the Fifth Amendment's due process clause was the [Page 1226] decade-old case of Murray's Lessee v. Hoboken Land & Improvement Co. In that case, a unanimous Supreme Court said that procedural due process embodied-incorporated, if you will-all the other procedural rules laid down in "the constitution itself." [148] Rawle had said much the same thing in his treatise thirty years earlier. [149] If, here too, the framers of the Fourteenth Amendment were entitled to rely on authoritative Supreme Court pronouncements (and it is hard to see why not), then the due process clause of the Fourteenth Amendment by itself embodied-incorporated-various procedural safeguards specified in Amendments V-VIII. That leaves only six amendments in the Bill-the first four and the last two-where the privileges or immunities clause has independent bite. [150] Of these six, five explicitly speak of the rights of "the people" [151]-a phrase that Dred Scott, John Bingham, and many other commentators understood as for many purposes synonymous with "citizens." For example, Senate rules circa 1866 did not permit foreigners to petition that body [152] because petition was a right "of the people." The fit between the explicit rights of "the people" in the original Bill and those provisions where the privileges or immunities clause has independent bite may not be perfect, but surely it is close enough to explain why so many in 1866 would have naturally thought of the nonprocedural provisions of the original Bill as rights of citizens. [153]

[Page 1227]

6. Beyond Mechanical Incorporation

We have now come slowly, but I hope surely, to the deep truth at the core of Hugo Black's observation that "the words 'No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States' seem ... an eminently reasonable way of expressing the idea that henceforth the Bill of Rights shall apply to the States." [154]

The best objection to Black's claim is that other language could have been used that would have expressed the purpose more clearly. [155] This objection does seem devastating to the particular brand of mechanical incorporation that Black's rhetoric at times appeared to suggest: that the privileges or immunities and due process clauses were simply terms of art referring to the first eight amendments in every jot and tittle, and to nothing else. If the key clauses of the Fourteenth Amendment meant Amendments I-VIII- no more, no less-why were the amendments not invoked by name? Why, indeed, use words like "privileges," and "immunities" which are only synonymous with, rather than identical to, the words of the first eight amendments themselves?

Black never offered satisfying answers to these questions, perhaps because the best answers require abandonment of mechanical incorporation. But for Black, part of the appeal of incorporation lay in its mechanical quality-its apparent ability to reduce judicial discretion by establishing an exact identity between the broad language of the Fourteenth Amendment and the seemingly more specific rules of Amendments I-VIII. [156] The framers of the Fourteenth [Page 1228]

Amendment did not share Black's preoccupation with mechanical rules [157] and wrote an amendment whose faithful interpretation and implementation, alas, cannot be mechanical. [158] The best reading of the Amendment suggests that it "incorporates" the Bill of Rights in a far more subtle way than Black admitted, including both more and less than Amendments I-VIII.

Clearly, the privileges or immunities clause encompasses more than the federal Bill as such. Article I, Section 9, for example, declares that "The Privilege of the Writ of Habeas Corpus shall not be suspended," except in certain limited circumstances. Though Rawle had claimed otherwise in 1825, Barron squarely held that this clause, like all the other provisions in Section 9, bound only the federal government. [159] By withholding habeas from blacks claiming to be kidnapped, antebellum Southern states had facilitated the capture and return of alleged fugitive slaves. [160] Though the Thirteenth Amendment had formally abolished slavery, states attempting to resurrect slavery de facto through Black Codes would predictably manipulate habeas to implement their scheme. Protecting the self-described "privilege" of habeas corpus against wayward states was thus of central concern to the framers of the Fourteenth Amendment. [161] In their initial pronouncements on the Fourteenth Amendment in the Slaughter-House Cases, the Justices on the Supreme Court disagreed sharply about quite a lot, but none denied the Great Writ was indeed a "privilege of citizens of the United States" protected against the infringement by the new Amendment. Indeed, Justice Miller's majority opinion, generally thought today to have rendered the privileges or immunities clause utterly meaningless, explicitly listed "the privilege of habeas corpus" in its catalogue of Fourteenth Amendment rights. [162]

So far, Justice Black may not have been troubled, for like Amendments I-VIII, the habeas clause is textually specified in the pre-1866 Constitution, and thus its incorporation too is relatively mechanical. [163] Indeed, Black might [Page 1229] have used Miller's concession to undermine the rest of Miller's argument, which seemed to resist, if not reject, total incorporation of the first eight amendments. Under what theory does the privileges or immunities clause incorporate the Great Writ specified in Article I, but not all the Great Rights specified after Article VII? It would be silly to argue that the difference is that the habeas clause used the magic word "privilege" whereas later clauses in the Bill only used synonyms like "right" or "freedom." (Interestingly, Justice Bradley's dissent in Slaughter-House not only argued for incorporation of all the "personal privileges and immunities ... specified in the original Constitution, or in the early amendments of it"; it also included in the catalogue "the right of habeas corpus." [164])

The habeas clause, however, presents hidden problems for Black as well, for its use of the word "privilege" calls attention to the word and naturally directs our gaze to the only other clause of the pre-1866 Constitution to use the word-the so-called comity clause of Article IV: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." These words clearly have some sort of connection to those of the Fourteenth Amendment-the pattern of the words "citizens," "privileges," and "immunities" in tight formation in both places calls for explanation. Black gave none. In the abstract, these words may not seem devastating to his mechanical view-especially in light of the widely held Republican view that these words in Article IV incorporated by reference the rights, freedoms, privileges, and immunities later specified in the federal Bill. [165] But in 1866, those Article IV words also came packaged with an influential judicial gloss. And just as we cannot fully understand the words "No State shall" without reading Barron; or the words "citizens of the United States" without reckoning with Dred Scott; or the meaning of "due process" without confronting Murray's Lessee; so here, we must consider the leading comity clause case on the books in 1866: Justice Bushrod Washington's 1823 Circuit Court opinion in Corfield v. Coryell.

In Corfield, Washington identified "privileges and immunities" as those which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union ... [including] the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess [Page 1230] property of every kind, and to pursue and obtain happiness and safety. [166]

Justice Washington went on to add to his nonexhaustive list "the benefit of the writ of habeas corpus" and the rights to "maintain actions of any kind in the courts" and to "take, hold and dispose of property, either real or personal." [167] Though he did not cite Blackstone by name, Washington seemed to be following a quintessentially common law approach in deducing "fundamental" rights.

We have seen this kind of thinking before in the common law approach of Barron contrarians such as Rawle and Lumpkin: fundamental rights deriving from a variety of sources-typically, nature and history-preexisted their textual specification in legislative codes. Where We the People had given our judicial imprimatur to a right by including it in the federal Bill, such a right was virtually by definition "fundamental." Indeed, Lumpkin described the Bill as "a legal decalogue for every civilized society, in all time to come," declaring "fundamental truths ... at the foundation of our free, republican institutions" and encompassing rights "at the bottom of every free government" [168] -formulations strikingly reminiscent of Corfield's ode to "fundamental" rights belonging to "the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of America."

As we have seen, Lumpkin also suggested that for institutional reasons, rooted in fear of judicial discretion, perhaps judges should not invalidate statutes in the name of fundamental rights that had not yet received the People's imprimatur. But when read through the lens of the Article IV comity clause, as glossed by Corfield's ode, the language of Section One opens up broader possibilities. Corfield's nonexhaustive list of fundamental rights radiated well beyond those enumerated in the federal Bill; and this open-ended list received considerable attention in the Thirty-ninth Congress. Thus, Senator Lyman Trumbull and Representative James Wilson both quoted Washington's ode, Blackstone, and other broad common law and natural rights language in support of their 1866 Civil Rights Act, whose provisions were generally understood to be subsumed within the privileges or immunities clause of the subsequent Fourteenth Amendment. [169] Corfield was again read broadly by Jacob Howard in his influential speech on Section One, which invoked both Washington's ode and the Bill of Rights as exemplifying "privileges and immunities of citizens of the United States." [170] Justice Black, however, stressed the Bill and shunned the ode. [171] For Black, Justice Washington's words conjured up the specter [Page 1231] of judges invalidating statutes by invoking nontextually specified fundamental rights and by giving common law rights, such as freedom of contract, constitutional status. The specter haunting Justice Black has a name. Its name is Lochner. [172]

Understanding that the privileges or immunities clause applied to various common law rights may not necessarily lead us to Lochner, however. For example, John Harrison has suggested that where a privilege or immunity derives not from the federal Constitution or Bill of Rights, but from common law or state law, the privileges or immunities clause prohibits only irrational discrimination in defining and enforcing these rights. [173] Detailed analysis of his thoughtful and intricate arguments would take us rather far afield; for our purposes it is enough to note that Section One is not limited to privileges and immunities specified in the pre-1866 Constitution. Other common law rights were also included, though there remain questions about the precise kind of protection intended. For these nonconstitutional rights, perhaps only antidiscrimination ("equal") protection should be accorded, rather than fundamental rights ("full") protection. [174] Questions also remain about judicial competence to find unspecified rights; [175] but those fundamental rights that had already been specified and "declared" by We the People were easy cases for full judicial protection, and thus at the core of the Fourteenth Amendment.

So much then for Section One's penumbral radiations beyond Amendments I-VIII, for this is only half the story. Section One means not just more than [Page 1232] mechanical incorporation but also less. [176] Once again, the habeas clause of Article I, Section 9 helps illustrate the point. Why does the Fourteenth Amendment incorporate this self-proclaimed privilege, but not, for example, its Section 9 companion clause, "No Capitation, or other direct, Tax shall be laid unless in Proportion to the Census or Enumeration herein before directed to be taken"? The answer goes beyond the fact that the capitation clause does not talk like a privilege; it doesn't walk or act like a private right either. Rather, it sounds in federalism, guaranteeing a fair distribution of the federal tax burden among states. As a state right of sorts, the capitation clause resists easy incorporation against states.

Yet as I have argued elsewhere, the same holds true for various provisions of the original Bill of Rights. [177] Justice Black himself saw the obvious difficulties of incorporating the Ninth and Tenth Amendments, which he read as pure federalism provisions. Thus, Black argued only for incorporation of the first eight amendments. But federalism insinuated itself throughout the original Bill of Rights: separating out citizen rights and state rights calls for a scalpel, not a meat cleaver. For example, is the establishment clause more like the habeas and free speech clauses (and thus an easy candidate for incorporation) or like the capitation clause and the Tenth Amendment (and thus rather awkward to incorporate)? Or is it, perhaps, some sort of sui generis hybrid that calls for "partial" incorporation? [178]

Mechanical incorporation, then, rests on an optical illusion that the Constitution defines government structure, and the Bill declares citizens rights (redefining "the Bill" of course, as the first eight, or perhaps nine, amendments). The reality is, alas, more complicated. [179] The original Constitution also declares rights (witness the habeas clause); the Bill also embodies structure (witness the Tenth Amendment); and both Constitution and Bill intertwine rights and structure.

The wording of the Fourteenth Amendment is remarkably sensitive to this more complicated reality. Section One requires us to ask whether a given provision of the Constitution or Bill really does declare a "privilege or immunity of citizens" rather than, for example, a right of states. The answer will often be anything but mechanical, requiring considerable judgment and hard choices. But this is exactly what the words of Section One demand. They avoid speaking of the "first eight amendments" or the "Bill of Rights" not just because these [Page 1233] words would have meant too little, but also because they would have meant too much. If "refined incorporation" of the sort I shall elaborate in Part III was indeed intended, it would have been hard to draft better language that the words in Section One.

B. Glosses on the Text

1. The Thirty-ninth Congress

a. The Easy Case Made Easier

The easy case for (nonmechanical) incorporation, then, rests on the plain meaning of the words of Section One circa 1866. Is there anything in the legislative history of these words that contradicts this straightforward reading? On the contrary.

Begin with Section One's principal draftsman, John Bingham. As we have seen, Bingham had argued before the House as early as 1859 that "whenever the Constitution guaranties to its citizens a right, either natural or conventional, such guarantee is in itself a limitation upon the States." [180] Over the next few minutes, he made clear that such "guarantees" that "no State may rightfully ... impair" included the due process and just compensation mandates of "the fifth article of amendments," the "trial by jury," and "the right to know; to argue and to utter, according to conscience"- guarantees he described as "privileges and immunities of citizens of the United States." [181] "Citizens" here meant just that, as Bingham illustrated by quoting Dred Scott and other commentary. [182] But Bingham also said that Dred Scott had gone too far, limiting certain rights, such as due process, that under both natural law and constitutional text extended to all persons, whether citizens or not. [183] In a nutshell, Bingham's position was that no state could violate the Constitution's "wise and beneficent guarantees [Page 1234] of political rights to the citizens of the United States, as such, and of natural rights to all persons, whether citizens or strangers." [184]

Now these views, expressed in 1859, track almost perfectly the natural meaning of the words Bingham drafted in 1866 as Section One of the Fourteenth Amendment. Thus, we find Bingham in 1866 repeating in speeches before the House arguments he had made seven years earlier. As we have already noted, Bingham once again quoted from Dred Scott on constitutional rights of "citizens" as "citizens," yet repeated his claim that Dred Scott was too stingy in refusing certain due process protections to "persons, whether citizens or strangers." [185] In another nutshell, no state should be allowed to violate "the privileges and immunities of all the citizens of the Republic and the inborn rights of every person within its jurisdiction." [186] The privileges or immunities clause would protect citizen rights, and the due process and equal protection principles (which Bingham saw as linked, if not synonymous [187]) would protect the wider category of persons.

But what, precisely, were the "privileges or immunities of citizens of the United States"? In 1859, Bingham offered no comprehensive summary, but strongly implied that all rights and freedoms guaranteed by the Constitution were included. Though he did not use the magic words "Bill of Rights," he either quoted or paraphrased the rights to speech, press, religion, due process, just compensation, and jury trial. In 1866, Bingham spoke to the issue at much greater length and made himself about as clear as one could ever hope for. Over and over he described the privileges or immunities clause as encompassing "the bill of rights"-a phrase he used in a key speech on February 28th no less than a dozen times. [188] In that speech, he also explained why a constitutional amendment was necessary, citing by name and quoting from the Supreme Court's opinions in Barron and one of its progeny, Livingston v. Moore. [189] The day before, a colleague of Bingham's, Robert Hale, had suggested that states were already bound by the Bill, [190] but Bingham set Hale and others straight with the following quotation from Livingston: "As to the amendments of the Constitution of the United States, they must be put out of the case, since it is now settled that those amendments do not extend to the States ...." [191] Six weeks later Bingham again held forth on the need for his amendment, invoking "the bill of rights" six times in a single speech and again reminding his colleagues that it "has been solemnly ruled by the Supreme Court of the [Page 1235]

United States," that "the bill of rights ... does not limit the powers of States." [192] In 1871, several years after the Fourteenth Amendment's ratification, Bingham was once more called upon to parse its words. He yet again cited by name and quoted from Barron, [193] and here too he immediately linked "the privileges and immunities of citizens of the United States" with the Bill of Rights:

[T]he privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States. Those eight amendments are as follows. [Bingham then proceeded to read the first eight amendments word for word.] These eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth amendment. [194]

In light of all this, it is frankly astonishing that some scholars, most notably Charles Fairman and Raoul Berger, have suggested that when Bingham invoked "the bill of rights," he didn't mean what he said. [195]

Two years before Bingham introduced his amendment, Representative James Wilson had made clear that he too understood the "privileges and immunities of citizens of the United States" to include the guarantees of the [Page 1236] amendments. His words also show that he deemed all rights and freedoms in the Bill-even those declared only against "Congress"-to be binding on state governments:

Freedom of religious opinion, freedom of speech and press, and the right of assemblage for the purpose of petition belong to every American citizen .... With these rights no State may interfere .... Sir, I might enumerate many other constitutional rights of the citizen which slavery has disregarded and practically destroyed, but I have [said] enough to illustrate my proposition: that slavery ... denies to the citizens of each State the privileges and immunities of citizens ....

... The people of the free States should insist on ample protection to their rights, privileges and immunities, which are none other than those which the Constitution was designed to secure to all citizens alike .... [196]

Plainly, then, Wilson and Bingham both read that Bill through contrarian lenses, though Bingham was far more conscious that the Supreme Court had rejected this reading. And both leaders understood that the plain meaning of Section One was that henceforth, the federal government would have explicit power to compel state compliance with all the "privileges" and "immunities" of "citizens" set out in the Bill. Shortly before the Amendment came before the House for final approval, political leader Thaddeus Stevens delivered a speech describing its provisions. Here are his opening words on Section One:

I can hardly believe that any person can be found who will not admit that every one of these provisions is just. They are all asserted, in some form or other, in our DECLARATION or [of?] organic law. But the Constitution limits only the action of Congress, and is not a limitation on the States. This amendment supplies that defect .... [197]

In the Senate, Jacob Howard offered the most comprehensive analysis of Section One:

[Page 1237]

[I]ts first clause, [which] I regard as very important ... relates to the privileges and immunities of citizens of the United States as such, and as distinguished from all other persons .... [Here is what a] very learned and excellent judge says about these privileges and immunities of the citizens of each State in the several States [in] the case of Corfield vs. Coryell. [Howard then quoted Corfield at length.]

Such is the character of the privileges and immunities spoken of in [Article IV]. To these privileges and immunities, whatever they may be-for they are not and cannot be fully defined in their entire extent and precise nature-to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all of the people; the right to keep and bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner; the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments.

... [T]he course of decision of our courts and the present settled doctrine is, that all these immunities, privileges, rights, thus guarantied by the Constitution or recognized by it ... do not operate in the slightest degree as a restraint or prohibition upon State legislation .... [I]t has been repeatedly held that the restriction contained in the Constitution against the taking of private property for public use without just compensation is not a restriction upon State legislation, but applies only to the legislation of Congress.

... [T]hese guarantees ... stand simply as a bill of rights in the Constitution ... [and] States are not restrained from violating the principles embraced in them .... The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees. [198]

There is much more legislative history to confirm the material we have canvassed so far-the leading scholarly work counts no fewer than thirty Republican statements in the Thirty-eighth and Thirty-ninth Congresses voicing contrarian sentiments, and not one supporting Barron. [199] As a lover of mercy, however, I shall resist the temptation to present all the evidence that anti-incorporationists have overlooked or distorted. For what we have seen thus far virtually clinches the case for some sort of incorporation.

Consider first the sources. John Bingham was the author of Section One. Thaddeus Stevens was not only the political leader of the House, but also head [Page 1238] of the House delegation of the all-important Committee on Reconstruction that officially reported the Fourteenth Amendment. Jacob Howard was Stevens' acting Joint Committee counterpart in the Senate. James Wilson was Chair of the House Judiciary Committee and sponsor of the Civil Rights Act of 1866, whose provisions Section One was consciously designed and widely understood to embrace.

Consider next the context. Bingham's audience knew he was the author and thus paid particular attention to his expositions. [200] Stevens delivered a written speech (a rarity for him, as the New York Herald noted the next day) [201] in his formal capacity as House Chairman of the Joint Committee. Howard too purported to speak on behalf of the committee, addressing a packed gallery in a speech whose passage on the Bill of Rights was reprinted in full in both the New York Times and the Herald. [202] (The popular press had also covered Bingham's earlier statements. [203]) And not a single person in either house spoke up to deny these men's interpretation of Section One. Surely, if the words of Section One meant something different, here was the time to stand up and say so.

Consider, finally, that all these men offered glosses that mesh perfectly with each other and-most importantly-with the plain meaning of the words of Section One.

b. Incorporating Anti-Incorporation Insights

If the key sentence of Section One does not in some way or another incorporate the Bill of Rights, then just what does it do? The two most prominent critics of incorporation, Charles Fairman and Raoul Berger, have suggested two radically different alternatives. Each has something going for it-something that does tend to undermine Black's brand of mechanical incorporation-but something that in fact supports a refined model of incorporation.

(i) Fairman

Professor Charles Fairman spent so much energy attacking Justice Black that he failed to offer any sustained narrative in support of an alternative reading of the Fourteenth Amendment. After about 130 pages of Black-bashing, [Page 1239]

Fairman concluded that "pretty clearly there never was any such clear conception" of precisely what would be included in and excluded from Section One's commands. [204] Nevertheless, Fairman cast his lot with Frankfurter, suggesting that principles of fundamental fairness and ordered liberty were probably better touchstones than anything else. And "surely," Fairman emphasized, "the federal requirements as to juries were not included." [205]

Fairman was half right. Nothing in the words or history of Section One yields a precise principle of exclusion. Had its framers intended to limit its scope to only privileges, rights, and freedoms declared in the pre-1866 Constitution, better words could have been found. But nothing in Fairman's account of the legislative history of the Thirty-ninth Congress shows that jury trial rights, or any other provisions of the federal Bill, were not seen as fundamental. Howard, for example, plainly said that all the privileges and immunities of Amendments I-VIII were included, but he also simultaneously described them as "these great fundamental guarantees." [206] Wilson's words in the Thirty-ninth Congress were almost identical, referring to "the great fundamental rights embraced in the bill of rights," which he had moments earlier described as "the great fundamental rights belonging to the citizen." [207] Wilson's Senate cosponsor of the Civil Rights Act was Lyman Trumbull, and he, too, equated constitutional rights with fundamental rights: "Each State, so long as it does not abridge the great fundamental rights belonging, under the Constitution, to all citizens, may grant or withhold such civil rights as it pleases." [208]

Thus, we find repeated claims that all privileges and immunities guaranteed in the Bill are indeed fundamental and worthy of Fourteenth Amendment protection. In light of these emphatic claims, did anyone argue that jury provisions-or any other rights-in the Bill were not fundamental, and should not be imposed on states? Fairman presents no one. He instead tries to make hay out of speeches talking fundamental rights talk without explicitly mentioning "the Bill of Rights." Typical of this dubious strategy is his treatment of Senator John B. Henderson who, several days after Howard's speech, said "it will be a loss of time to discuss the remaining provisions of the section, for they merely secure the rights that attach to citizenship in all free Governments." [209] Fairman commented: "Unless the first eight Amendments enumerate 'rights that attach to citizenship in all free governments,' Henderson's understanding is to [Page 1240] be counted as opposed to that of Howard." [210] But Fairman's "unless" swallows up the rest. Howard not only said plainly and at length that the rights in Amendments I-VIII were encompassed by Section One (which Henderson nowhere denied); and Howard not only simultaneously defined these rights as "fundamental" (again, not a peep from Henderson); but moments later Howard appeared to equate, rather than distinguish between, "the privileges and immunities ... secured by the first eight amendments of the Constitution" and "those fundamental rights lying at the basis of all society and without which a people cannot exist except as slaves." [211] Henderson's passing comment seems more an echo than a refutation of Howard's elaborate remarks.

We have seen rhetoric like Howard's before. In his oral argument in Holmes v. Jennison, Van Ness had described the rights in the Bill as "principles which lie at the very foundation of civil liberty"; and in two cases decided years apart, Lumpkin had variously described the Bill-explicitly including jury trial provisions-as declaring "fundamental truths ... at the foundation of our free, republican institutions," and rights "at the bottom of every free government." [212] As we have already noted, the idea that rights declared in the Bill were ipso facto fundamental had deep jurisprudential roots in the methodology of the common law and in the fear of unfettered judicial discretion.

The Civil War experience provided powerful ideological, almost religious, reinforcement. The war had of course taken a terrible toll in lives and limbs, and even victory tasted bittersweet. Republicans in 1866 needed to convince their constituents that all had not been in vain, that the noble goals of the Union-preservation of nation and (later) freedom-had been worth the fight and had been won. The Bill was perfect symbol of both goals, even better in some ways than the Declaration of Independence and the original Constitution. The Declaration had arguably preceded nationhood and featured language of "free and independent states," a phrase repeatedly invoked on behalf of secession. [213] The original Constitution had been tainted by its open compromises with slavery, and it, too, could be seen as the product of independent state conventions, none of whom could bind any other (again, points repeatedly emphasized by secessionists). [214] The Bill, by contrast, clearly derived from America as a nation, and proclaimed freedom, not slavery. What better embodiment of the slogan, "Freedom National"-especially once the Bill's states' rights features were filtered out by the phrase "privileges or immunities of citizens of the United States"?

[Page 1241]

It has become commonplace to remark upon Lincoln's blending of religious and constitutional rhetoric-in his Inaugural and Gettysburg Addresses, for example-but Bingham's imagery also bears notice. For him the Bill was not simply "immortal," [215] as he preached in his maiden sermon in support of his Amendment, but "sacred," a word that punctuates his most extended meditation on the Bill:

As a further security for the enforcement of the Constitution, and especially of this sacred bill of rights, to all the citizens and all the people of the United States, it is further provided that the members of the several State Legislatures and all executive and judicial officers, both of the United States and of the several States, shall be bound by oath or affirmation to support this Constitution. The oath, the most solemn compact which man can make with his Maker, was to bind the State Legislatures, executive officers, and judges to sacredly respect the Constitution and all the rights secured by it.... [The Bill of Rights encompasses] all the sacred rights of person-those rights dear to freemen and formidable only to tyrants- and of which the fathers of the Republic spoke, after God had given them the victory .... [216]

Bingham waxed on at length proclaiming the need for "fidelity to the sacred cause of the Constitution," describing the Founders' Bill as "essential provisions of your Constitution, divine in their justice, sublime in their humanity," invoking "God" countless times, and in fact closing with a reference to "the imperishable attribute of the God of nations." [217] Given all this iconography, the suggestion that some provisions of the Founders' Decalogue were dispensable would be as jarring (heretical is the le mot juste) as the claim that some of the Ten Commandments really were not, well, fundamental.

Fairman was remarkably insensitive to all of this and indeed, quite anachronistic. Because he, in 1949, deemed various parts of the Bill to be optional or outdated, he tended to attribute similar views to the 1866 Congress: When Bingham said "bill of rights" he couldn't have meant it; his rhetoric showed sloppy thinking rather than a worldview to be taken seriously; silence on the other side must have meant that Bingham and company had not been understood; for surely some sane lawyer would otherwise have clearly spoken out against such silliness; and so on. Hugo Black, not Charles Fairman, proved the more faithful historian, for he understood-because he shared-the almost mystical attachment to the Bill of Rights exemplified by John Bingham. The title of Black's Carpentier Lectures on incorporation (among other things) says it all, and quite self-consciously: "A Constitutional Faith." [218]

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Bingham's constitutional faith was not simply a private affair, for he wove it into the very fabric of the key sentence of Section One. How else to account for the sentence's pious blending of phraseology from no less than four sections of the pre-1866 Constitution (Article I, Section 10; Article IV; and Amendments I and V) and its paraphrase of a fifth (substituting "citizens" for the Preamble's "We the People")?

Of course, not all of Bingham's colleagues shared his faith, but they too had obvious reasons to value virtually every privilege and immunity in the Bill. Even if not sacred because given from above (from The Fathers, The People, or The Almighty) the Bill had proved its secular value-if only by its unavailability-in the trenches of the antebellum crusade against slavery. As we have seen, slavery led to state repudiation of virtually every one of the Bill's rights and freedoms, most definitely including the Bill's "inestimable privilege" of juries-grand, petit, and civil-in cases involving liberty. [219] As it had for Anti-Federalists in the 1780's, the Bill encompassed for Republicans in the 1860's an armory of indispensable weapons against a tyranny that people had seen with their own eyes. The difference, of course, was that unlike the tyranny of George III, the tyranny of slavery could not be blamed on a distant and dictatorial center, but instead had been perpetrated by local democracies. Just as the price of peace and union in 1789 was a Bill of Rights against the center, so the price of peace and (re)union in 1866 was a Bill of Rights against the periphery.

The Bill thus stood as a handy pledge of the good faith of the South, enforceable by congressional refusal to readmit states that continued to violate its provisions. On the very day Bingham preached his most extended sermon on the Bill in the House, Senator James Nye proclaimed that Congress had "no power to invade" privileges of the Bill such as "freedom of speech," "freedom of the press," "freedom in the exercise of religion," and the "security of person," but that Congress did have power to "restrain the respective States from infracting them" by continuing to exclude as unrepublican any state violating these "personal rights." [220] Representative Roswell Hart agreed several weeks later, defining a "republican" government as one where:

"citizens shall be entitled to all privileges and immunities of other citizens;" where "no law shall be made prohibiting the free exercise of religion; where "the right of the people to keep and bear arms shall not be infringed;" where "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated," and where "no person shall be deprived of life, liberty, or property without due process of law." [221]

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In a similar vein, Congressman Samuel Moulton argued against readmittance of various Southern states because "there is neither