http://papers.ssrn.com/sol3/papers.cfm?abstract_id=229228This article, analyzing critical debates in Congress and Supreme Court opinions and briefs between 1868 and 1880, proposes to overturn more than a century of conventional wisdom on the issue of "incorporation" of the Bill of Rights in the Fourteenth Amendment.
The conventional view has been that Justice Miller's majority opinion in the Slaughter-House Cases (1873) (SHC) rejected incorporation and gutted the Fourteenth Amendment Privileges and Immunities Clause. In books published in 1953 and 1980, W.W. Crosskey and John Hart Ely suggested that both the SHC majority and dissents may in fact support incorporation. Robert Palmer developed this idea in a 1984 article, as did Kevin Newsom in a recent Yale Law Journal article.
This article builds in part on Crosskey, Ely, Palmer, and Newsom, but has a broader scope. It analyzes key source material not previously explored in this regard by those or other scholars, most notably critical 1870s debates in Congress. It also disagrees with Newsom's analysis of post-SHC cases, and is the first work to consider in this regard the contemporary briefs and arguments before the Court. That resource has rarely been explored in previous scholarship in this area, and produces surprising findings that have gone mostly unnoticed, including that incorporation was favorably discussed (and virtually unchallenged by any party) in the SHC briefs, and that the issue was not even properly before the Court in U.S. v. Cruikshank (1876) and Walker v. Sauvinet (1876), which fatally undermined the theory. Newsom argued that even Cruikshank, Walker, and later cases were consistent with incorporation, but this article disagrees, pointing to aspects overlooked by Newsom.
Total incorporation was arguably a compromise embraced by all nine Justices in 1873. This is supported by a careful reading of the SHC majority opinion and by the fact that it was contemporaneously so read by members of Congress across the political spectrum in 1873-74. Indeed, incorporation was seen as a minimal consensus reading of both the Fourteenth Amendment and SHC, embraced by Democrats and Republicans, conservatives and radicals alike.
The incorporation theory has been attacked as a radical 20th century "afterthought" by Charles Fairman and Stanley Morrison. Their influential 1949 articles responded to Justice Black's dissent in Adamson v. California (1947), which foreshadowed incorporation of most of the Bill of Rights by the Warren Court of the 1960s. Fairman's view of the original understanding in 1866-68 has been discredited by scholars such as Crosskey, Michael Kent Curtis, Akhil Amar, and Richard Aynes.
This article completes that task by refuting Morrison's analysis of the post-1868 case law and understanding. This should place the incorporation theory on a stronger foundation in the current Court, which recently signalled, in Saenz v. Roe (1999), a willingness to reexamine the Fourteenth Amendment Privileges and Immunities Clause, which had lain mostly dormant for more than 130 years.
