Originalism, Incorporated Rights & 1868

Wed Jun 13 04:36:49 PDT 2007

Of ocurse it is possible.  But quite unlikely.  There is fairly clear 
historical evidence that many, many people in the years before 1866-68 did 
not understand free speech as protected by the 1st to be the Blackstone 
version.  What is hard is to find examples of people who did--after the 
Sedition Act debates that is.  Federalists did assert the Blackstone 
version.  Again, see the Free Speech book & the Bingham article.  I do not 
assume that original meaning or whatever is controlling.  Only that it is 
highly relevant.

Michael Curtis
----- Original Message ----- 
From: "John Fee" <Feej at lawgate.byu.edu>
To: <conlawprof at lists.ucla.edu>
Sent: Tuesday, June 12, 2007 9:05 PM
Subject: RE: Originalism, Incorporated Rights & 1868

>I agree that for originalists the date for interpreting something 
>promulgated in 1868 is 1868.  My point is based on that idea.  So for 
>originalists the initial problem of deciding what the 14th Amendment 
>incorporated should be resolved by reference to 1868.  But this does not 
>mean an originalist should automatically jump to the 1868 understanding of 
>the 1st Amendment, 2nd Amendment, etc. after accepting incorporation of 
>those amendments.  Just as it is possible for an 1868 enactment to 
>incorporate a 1791 text, it is also possible for it to incorporate the 1791 
>interpretation of that text along with it.  Indeed, it seems sensible to me 
>that if the framers of the 14th Amendment meant to incorporate some parts 
>of the Bill of Rights by implication because those guarantees were 
>considered fundamental, that we should assume they meant to incorporate the 
>same understanding of the Bill of Rights that the Framers of 1791 
>promulgated with respect to the Federal government unless ther!
> e is clear historical evidence that the Framers of 1868 intended for there 
> to be two legal versions of the Bill of Rights floating out there.  I do 
> not doubt that the alternative interpretation of the 14th Amendment is 
> possible; it just seems counter-intuitive to me.
>
> Perhaps my preference is based on pragmatism and policy concerns 
> (especially the desirability of having the Bill of Rights mean the same 
> thing for both state and federal governments, at least with respect to 
> those constitutional guarantees we believe to be so fundamental that they 
> are inherently assumed within the concept of "due process of law"), which 
> are not originalist concerns, and I am admittedly not a real or complete 
> originalist.  But I doubt that there is clear historical evidence that 
> resolves the specific incorporation question raised above (whether the 
> framers of 1868 incorporated just the text of the Bill of Rights, or the 
> text and original meaning of it altogether), and even originalists must 
> look to pragmatic concerns where the historical record runs out.
>
> John Fee
> Brigham Young University Law School
>
>
>
>
>>>> "Malla Pollack" <mpollack at ajsl.us> 6/12/2007 5:14 PM >>>
> 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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