Re-Speaking the Bill of Rights: A New Doctrine of Incorporation

Abstract

The incorporation of the Bill of Rights against the states by way of the Fourteenth Amendment raises a host of textual, historical and doctrinal difficulties. This is true even if (especially if) we accept the Fourteenth Amendment as having made the original Bill of Rights binding against the states. For example, do we have two Bills of Rights, one applicable against the federal government with one meaning, and a second applicable against the state governments with a different meaning? If historical understanding is to guide the interpretation of the incorporated Bill of Rights, is that understanding rooted in 1791, the year the people ratified the original Bill of Rights? Or is it rooted in 1868, when a new people added the Fourteenth Amendment to the Constitution? Do 1791 understandings carry forward into the 1868 amendment? Or do 1868 understandings of the Bill of Rights carry backward into the 1791 amendments by way of the doctrine of “reverse incorporation?” This essay proposes a new theory of incorporation (and reverse incorporation) that resolves these difficulties, one based on the text and historical understanding of the Fourteenth Amendment. When the people of 1868 ratified the opening sentence of the Fourteenth Amendment, their sovereign voice brought into constitutional existence “citizens of the United States” who, by definition, enjoyed certain “privileges or immunities.” The second sentence makes these privileges and immunities of national citizenship applicable against the states. If the people of 1868 understood the term “privileges or immunities” to include the rights enumerated in the 1791 amendments, then the two opening sentences of Section One of the Fourteenth Amendment effectively “re-speak” the Bill of Rights as 1868 privileges and immunities. Re-spoken by a new people in a new context, these 1791 words communicated a new understanding of the Bill of Rights — that held by the people of 1868 and which equally binds both federal and state governments.