Originalism, Incorporated Rights & 1868

[John Fee]

I have heard this argument before -- that originalists should interpret the Bill of Rights as applied against the states according to the 1868 understanding of those provisions, rather than the 1791 understanding -- but this seems puzzling to me.  

Originalists only get to incorporation by accepting that the framers of the 14th Amendment must have thought that the guarantees of the Bill of Rights of 1791 (or at least some of them) were so fundamental to good government -- and that such was the common understanding in 1868 -- that such guarantees were automatically implied by the general terms of the 14th Amendment ("due process of law" "privileges and immunities" -- take your pick).  That seems plausible enough.  But is it also plausible to believe that those Framers of the 14th Amendment also recognized that the meaning of the Bill of Rights had changed since 1791, and that it was the "changed version" that was so fundamental to good government as to be automatically implied by the general terms of the 14th Amendment, and that later generations interpreting the 14th Amendment would know to interpret the Bill of Rights as against the states according to the 1868 understanding (even if inconsistent with both the original understanding and post-1868 understandings) -- and that all of this was so obvious to educated people as to not need spelling out in the text of the 14th Amendment?  I have a hard time swallowing all of that.

It seems to me that one should either accept incorporation on originalist grounds and focus on the 1791 meaning of the Bill of Rights (on the theory that the 14th Amendment incorporated that original understanding); or one should accept incorporation for non-originalist reasons, in which case one is not bound by either 1791 or 1868; or one should not accept incorporation.

John Fee
Brigham Young University Law School




by accepting get incorporation if we believe that the guarantees of the Bill of Rights (at least most of them) are so fundamentally part of good government 

>>> Stephen Siegel <ssiegel at condor.depaul.edu> 6/11/2007 1:54 PM >>>
It seems to me that in discussing the limitations that the Bill of Rights
places on the states, originalists should focus on the meaning of those
guarantees in 1868, not in 1791.

Are there any theoretical discussions of the issue, either pro or con?

Even if they do not have an extended theoretical discussion, are there any
writings that discuss the meaning of incorporated rights by looking at
their meaning in 1868 rather than in 1791 - besides Kurt Lash's articles
on the Establishment and the Free Exercise Clause?

Thank you for any guidance.

Stephen Siegel
DePaul University College of Law

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