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Volume18
Year2009
TitleThe New Originalism Meets the Fourteenth Amendment: Original Public Meaning and the Problem of Incorporation
Author(s)Lawrence Rosenthal
First Page361
AbstractThis Article explores the historical case for incorporation in light of the original public meaning of the Fourteenth Amendment. It seeks to demonstrate that the New Originalism poses special problems for incorporation because the prevailing public understanding of the privileges and immunities of citizenship prior to the framing of the Fourteenth Amendment did not include any privilege or immunity with respect to state laws inconsistent with the first eight amendments. Although many who crafted the Fourteenth Amendment had a different view of the privileges and immunities of citizenship, the evidence is thin that the drafters succeeded in altering the general understanding of the privileges and immunities of citizenship. Viewed through the lens of original public meaning, the historical case for incorporation is therefore problematic.
The article proceeds in three steps. Part I demonstrates that at the time the Fourteenth Amendment was drafted, the prevailing understandings of the privileges and immunities of citizenship did not include the rights enumerated in the Constitution's first eight amendments. Part II examines the evidence from the framing era to determine whether the process of drafting and ratification altered the meaning of the privileges and immunities of citizenship sufficiently to accommodate incorporation, and finds that evidence wanting. Part III concludes that a nonoriginalist approach is a better way to tackle the incorporation problem.