Originalism, Incorporated Rights & 1868
roycemit at flash.net
Wed Jun 13 08:54:08 PDT 2007
I enjoyed reading your analysis of this, Prof. Rosenthal, but I am wondering if perhaps the reason the wording chosen was because there was no authority granted to Congress in the specific powers found in the Constitution of 1787 to grant the rights safeguarded to the Posterity, as indicated by the Preamble, to those not of the Posterity, as was held in Dred Scot. Therefore, the rights imposed upon the states would be privileges and immunities of the "persons" who were the intended focus of the War Amendments, not rights as we have come to understand them, and that such might explain the reason for the wording.
In other words, the "granting" of "equal" rights would not be the same thing as granting of the "same" rights enjoyed by the Posterity, said rights being "unalienable," which itself would make sense given the attitude toward the freedman exhibited in both the north and south circa 1868. Therefore, these would not be technically rights but privileges granted by statute, such as the one infra.
This would also explain the need for 42 USC 1981 which still exists on the books today.
"This will be the best security for maintaining our liberties. A nation of well-informed men, who have been taught to know and prize the rights which God has given them, cannot be enslaved." - Benjamin Franklin
----- Original Message -----
From: Rosenthal, Lawrence
To: Malla Pollack ; John Fee ; conlawprof at lists.ucla.edu
Sent: Wednesday, June 13, 2007 10:31 AM
Subject: RE: Originalism, Incorporated Rights & 1868
The text used in the Fourteenth Amendment, of course, was "privileges and immunities" and "due process," and neither of those terms had ever been authoritatively been construed to include the Bill of Rights -- indeed we know that the original Privileges and Immunities Clause did NOT include the Bill of Rights, at least under Corfield v. Coryell and the other leading judicial explications of the concept as of 1868. Surely the use of this phrase was a strange way to incorporate the Bill of Rights. To be sure, Bingham and a handful of others thought that the Fourteenth Amendment included the Bill of Rights, and made that point during the debates, although the actual text that they selected had no generally understood relationship to incorporation. Indeed, even after ratification of the Fourteenth Amendment, incorporation somehow escaped the notice of the leading treatise writer of the day (Cooley) and every member of the United States Supreme Court in Cruikshank (1875). Sinc!
e almost no one outside of Bingham's little circle seems to have noticed that the Bill of Rights suddenly became applicable to the States in 1868, incorporation seems quite difficult to support on any version of "original public meaning." Some form of selective incorporation probably is defensible as a way of giving content to the Privileges and Immunities Clause (and maybe even the Due Process Clause, which was understood to offer some sort of vaguely defined substantive protection as of 1868), but it is serious fiction to pretend that incorporation or anything like it can be achieved merely by reference to the original public meaning of the Fourteenth Amendment. Incorporation, whether total or partial, and linked to 1791 or 1868, requires common law elaboration of an ambiguous text.
Chapman University School of Law
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