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Volume18
Year2009
TitleThe Bill of Rights and the Rights and the States: An Overview From One Perspective
Author(s)Michael Kent Curtis
First Page3
Abstract"The Bill of Rights and the States: An Overview From One Perspective," discusses historical evidence for application of the Bill of Rights to the states, primarily under the privileges or immunities clause of the Fourteenth Amendment. It also briefly discusses application under due process. The article tells about my interest in application of the Bill of Rights to the States (starting with college in the 1960s) and about the wide spread agreement among legal academics in the 1970s and 1980s that history did not support applying the liberties to the states. Many of these relied on the work of Professor Charles Fairman, which rejected, at least, total application, and these scholars assumed Fairman's work was "conclusive." Indeed, some thought it disproved application generally. Later many relied on Raoul Berger. Critics at the time typically dismissed Justice Black's analysis. Curiously, they often totally ignored Professor Crosskey's long law review article responding to Professor Fairman's article on the same subject. As a law student and practicing lawyer, I made a few ineffective attempts to get scholars to at least read and discuss the Crosskey rebuttal. Finally, thanks to a law partner who loaned me Raoul Berger's Government by Judiciary, I began to write about the subject myself.
In this article, I discuss the substantial historical case for applying the liberties to the states under the privileges or immunities clause of the Fourteenth Amendment. I do so using multiple modes of analysis. The best way to understand historic meaning is multifactorial, as opposed to the "one true method" of understanding. The methods I suggest (thanks to the contributions of others) are historical context, the text of the amendment viewed in light of how the words "privileges" and "immunities" were used historically to describe Bill of Rights liberties, context (or inter-textual analysis), precedent, the views of leading framers, discussion in the campaign of 1866 which was largely a referendum on the Fourteenth Amendment, limited light from ratification, and constitutional structure. I summarize a few of these in this abstract.

Historical Context:
Since meaning is contextual, a good place to start is with the historical context. That context includes the suppression of speech, press, assembly, association, free exercise of religion, and other basic Bill of Rights liberties in the South (and sometimes in the North) in the interest of slavery. The suppression had taken place in the South for more than thirty years before the Civil War, and as the war approached Republicans had their speech, press, and assembly suppressed. The historical context also includes, of course, the racial discrimination of the Black Codes immediately after the war. A number of those codes not only discriminated, but also struck at basic constitutional liberties-if one assumes, as leading Republicans did, that the states were obliged to obey them. The codes abridged the right of blacks to preach, to worship together with a minister of their choice, to assemble, to speak, to bear arms, and to be free from cruel punishments.

The great failing of the work of scholars such as Professor Fairman and Raoul Berger was to consider far too limited a context. One of the great contributions of Professor Crosskey was to suggest expanding the context by looking at Republican complaints about denials of civil liberty in the South (before and after the war) and looking at their legal ideas. Crosskey recognized that many Republican framers held legal ideas that did not accord with Supreme Court decisions. They saw decisions such as Dred Scott and Barron v. Baltimore as wrong and in need of correction. Other modes of analysis are discussed in the paper.

Note: This article grew out of an invitation to participate in a conference on Incorporation of the Bill of Rights at the University of San Diego School of Law. The conference was co-sponsored by the USD Institute for the Study of Constitutional Originalism. This and other papers from the conference will be published in The Journal of Contemporary Legal Issues.