Originalism, Incorporated Rights & 1868

Malla Pollack mpollack at ajsl.us
Tue Jun 12 16:14:40 PDT 2007


I disagree. If you accept the premise of originalism that constitutional
text retains the meaning intended (received, understood etc) by its
promulgators, then the date for something promulgated in 1868 is 1868, not
1791.  Of course, originalists could argue that (i) the "real" meaning was
incapable of changing from the 1791 version (which destroys the basic
origalist  premise that the promulgators somehow control), or (ii) the 1868
meaning was constitutionally suspect because it had changed from 1791 (which
implies some problem with any constittuional amendment, even one not worded
to reference back to an earlier text), or (iii) claim as an empirical matter
that the 1868 and 1791 promolgators agreed (which I would think either false
or unprovable). 

FYI You can stay disciplined by the text of the Constitution without
accepting the dead hand of the past imposed by originalism.  See " Dampening
the Illegitimacy of the United States' Government: Reframing the
Constitution from Contract to Promise," Idaho Law Review (2005), available
on my bepress site.

Malla Pollack
Professor, American Justice School of Law
mpollack at ajsl.us
270-744-3300 x 28
articles http://works.bepress.com/malla_pollack/
-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of John Fee
Sent: Tuesday, June 12, 2007 5:23 PM
To: Stephen Siegel; conlawprof at lists.ucla.edu
Subject: Re: Originalism, Incorporated Rights & 1868

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 origina!
 l 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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