The Road to Twining: Reassessing the Disincorporation of the Bill of Rights

Abstract

This article (a sequel to Lost Compromise, 61 Ohio St. L.J. 1051 (2000), available at http://ssrn.com/abstract=229228) analyzes the early understanding in the Supreme Court, from 1880 to 1908, regarding of the Bill of Rights in the Fourteenth Amendment. The article provides a fresh and comprehensive analysis of all the relevant cases, with special attention to the briefs and arguments presented to the Court, a resource previously underused by scholars. It demonstrates that an incorporationist reading of the Slaughter-House Cases (1873), however unorthodox that may seem to modern legal thinkers, reverberated in the first extensive pro-incorporation argument presented to the Court, by John Randolph Tucker in Spies v. Illinois (1887). That incorporationist reading of Slaughter-House may also have played a role in the dissents by three Justices who embraced the incorporation theory in O'Neil v. Vermont (1892).The article details the treatment of the Bill of Rights incorporation theory up through the Court's historic decision in Twining v. New Jersey (1908), which embraced a theory of total disincorporation. It shows how this early case law has been profoundly misunderstood by earlier scholars, notably by Professor Stanley Morrison in a 1949 Stanford Law Review article (the companion to Professor Charles Fairman's famous analysis of the original understanding of the Fourteenth Amendment). In particular, it defends the first Justice John Marshall Harlan's historic and critical role in these cases.The article concludes by surveying the Court's modern treatment of the incorporation theory, and by noting the recent revival of the Fourteenth Amendment Privileges and Immunities Clause in Saenz v. Roe (1999). It argues that the evidence analyzed should place the incorporation theory on a stronger foundation as the Court faces a new century.Additional articles by Professor Wildenthal discuss the original understanding with regard to incorporation during the period from 1866 to 1873. See Nationalizing the Bill of Rights: Revisiting the Original Understanding of the Fourteenth Amendment in 1866-67, 68 Ohio St. L.J. 1509 (2007) (available at http://ssrn.com/abstract=963487); Nationalizing the Bill of Rights: Scholarship and Commentary on the Fourteenth Amendment in 1867-1873, 18 J. Contemp. Legal Issues 153 (2009) (available at http://ssrn.com/abstract=1354404).