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Volume18
Year2009
TitleNationalizing the Bill of Rights: Scholarship and Commentary on the Fourteenth Amendment in 1867-1873
Author(s)Bryan H. Wildenthal
First Page153
AbstractThis Article, in addition to being part of the present Symposium, is part of a larger project of my own-eventually to be published in book form-on the history and meaning of the Fourteenth Amendment in relation to the Bill of Rights. The main prior installments consist of three articles published in the Ohio States Law Journal, two in 2000 and one in 2007. The overall project explores the original and later understandings and applications of the Fourteenth Amendment with regard to whether that Amendment, properly construed, nationalizes (or "enforces" or "incorporates") the Bill of Rights against the states. As conceded in a previous article, "[m]any readers, especially professors of constitutional law...may well ask what more there could possibly be to say at this late date" about the incorporation debate. But that and other articles in this project-like the fascinating and valuable contributions of the other scholars in this Symposium, a distinguished group in whose company I am deeply honored-demonstrate that, in fact, "there is a great deal more that needs to be said."
Before this Article plunges into the detailed historical materials discussed in Parts II through XI, followed by my responses in Part XII to the other papers in this Symposium, Part I offers some broader reflections. These opening thoughts are preliminary and tentative. They will doubtless require later adjustment and reconsideration in light of continuing work by other scholars, including my fellow participants in this Symposium. But these musings build upon all the work I have done to date on this subject. Thus, I hope they offer some useful insights from one who has reflected a great deal on the evidence and issues involved. Part I.A sketches some of the challenges of connecting a mass of historical evidence with a coherent theory of how to interpret and apply the Constitution. Part I.B suggests the outlines of an overall narrative of the Fourteenth Amendment's early relationship with the Bill of Rights-it seeks to tell a plausible story making sense of the seemingly puzzling and contradictory historical evidence.