THE BILL OF RIGHTS AND THE FOURTEENTH AMENDMENT

INTRODUCTION
What is the relationship between the Bill of Rights and the Fourteenth Amendment? Does the Amendment "incorporate" the Bill, making the Bill's restrictions on federal power applicable against states?
If so, which words in the Fourteenth Amendment work this change? Are all, or only some, of the provisions of the first ten amendments "incorporated" or "absorbed" into the Fourteenth? If only some, which ones, and why?
Once "incorporated" or "absorbed," does a right or freedom declared in the Bill necessarily constrain state and federal governments absolutely equally in every jot and tittle?
Or, on the other hand, can a guarantee in the Bill ever lose something in the translation, so that only a part of the guarantee-perhaps only its "core"- applies against state governments by dint of the Fourteenth Amendment?

These questions have framed a debate that, in the words of Judge Henry Friendly, "go[es] to the very nature of our Constitution" with "profound effects for all of us."

Professor Van Alstyne has written that "it is difficult to imagine a more consequential subject," an assessment confirmed by the extraordinary number of twentieth-century legal giants who have locked horns in the debate - Hugo Black, Felix Frankfurter, William Brennan, Henry Friendly, William Crosskey, Louis Henkin, Erwin Griswold, and John Ely, to name only a few.
Perhaps even more extraordinary has been the willingness of Supreme Court Justices to reinforce their judicial pronouncements on the issue with extra-judicial elaborations. For example, after his retirement from the bench and shortly before his death, Justice Frankfurter published as his parting words to the legal community an elaborate "memorandum" on "incorporation" in the Harvard Law Review, piling up case citations and other material to support his own preferred solution to the issue.

Three years later, Frankfurter's great sparring partner, Justice Black, publicly responded in his Carpentier Lectures, breaking "a longstanding rule of not speaking out on constitutional issues." And in two James Madison Lectures delivered twenty-five years apart-each aptly titled "The Bill of Rights and the States"-Justice Brennan expanded upon his own proposed solution to the incorporation conundrum.

When we shift our attention from lectures and law reviews to United States Reports, we see much more evidence of the centrality of the incorporation debate to twentieth-century constitutional law. Consider, for example, the lead paragraph of the most famous footnote in Supreme Court history:
"There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth."
In the half-century since Carolene Products, the Court has taken the hint of footnote four. A list of cases applying various parts of the Bill of Rights against states reads like the "greatest hits" of the modern era:
New York Times v. Sullivan, Abington School District v. Schempp, Mapp v. Ohio, Miranda v. Arizona, Gideon v. Wainwright, Duncan v. Louisiana, and on and on.
Some cases, like Sullivan, merely applied provisions of the Bill of Rights that had long before been deemed "embraced within" the Fourteenth Amendment; others, like Duncan, achieved notoriety precisely because they decided to "incorporate" previously "unabsorbed" clauses.
Speaking only of the latter set, Justice Brennan ranked the incorporation opinions ahead of reapportionment and desegregation cases as "the most important series of decisions of the Warren era."
In remarks sharply critical of Brennan and his brethren, Solicitor General Erwin Griswold offered an even more sweeping assessment of the stakes involved: "I can think of nothing in the history of our constitutional law which has gone so far since John Marshall and the Supreme Court decided Marbury v. Madison in 1803."

And yet, despite the importance of the topic and all the attention devoted to it, we still lack a fully satisfying account of the relationship between the first ten amendments and the Fourteenth.
Minor variations aside, three main approaches have dominated the twentieth-century debate.
The first, represented by Justice Frankfurter, insists that, strictly speaking, the Fourteenth Amendment never "incorporated" any of the provisions of the Bill of Rights. The Fourteenth requires only that states honor basic principles of fundamental fairness and ordered liberty-principles that might indeed happen to overlap wholly or in part with some of the rules of the Bill of Rights, but that bear no logical relationship to those rules.
The second approach, championed by Justice Black, insists on "total incorporation" of the Bill of Rights. The Fourteenth Amendment, claimed Black, made applicable against the states each and every provision of the Bill, lock, stock, and barrel-at least if we define the Bill to include only the first eight amendments.
Faced with these diametric views, Justice Brennan tried to steer a middle course of "selective incorporation." Under this third approach, the Court's analysis could proceed clause by clause, fully incorporating every provision of the Bill deemed "fundamental" without deciding in advance whether each and every clause would necessarily pass the test. Methodologically, Brennan's approach seemed to avoid a radical break with existing case law rejecting total incorporation, and even paid lip service to Frankfurter's insistence on fundamental fairness as the touchstone of the Fourteenth Amendment.
In practice, however, Brennan's approach held out the possibility of total incorporation through the back door. For him, once a clause in the Bill was deemed "fundamental" it must be "incorporated" against the states in every aspect, just as Black insisted. And nothing in the logic of selective incorporation precluded the possibility that, when all was said and done, virtually every clause of the Bill would have been deemed fundamental.

As we shall see, there is something to be said for each of these positions, but each is also fatally flawed. An alloy of the three seemingly incompatible elements will prove far more attractive and durable than each unalloyed component.
But before such an alloy can profitably be forged, we need to do a considerable amount of preparatory work.
In Part I, we shall examine antebellum ideas about whether the original Bill of Rights applied against the states. In Part II, we shall study with care the text and context of the Fourteenth Amendment. Finally, in Part III, we shall return to the Black- Brennan-Frankfurter debate, which I shall attempt to synthesize with a new model of incorporation.

This synthesis, which I call "refined incorporation," begins with Black's insight that all of the privileges and immunities of citizens recognized in the Bill of Rights became applicable against states by dint of the Fourteenth Amendment.
But not all of the provisions of the original Bill of Rights were indeed rights of citizens. Some instead were at least in part rights of states, and as such, awkward to incorporate fully against states.
Most obvious, of course, is the Tenth Amendment, but other provisions of the first eight amendments resembled the Tenth much more than Justice Black admitted. Thus, there is deep wisdom in Justice Brennan's invitation to consider incorporation clause by clause rather than wholesale. But having identified the right unit of analysis, Brennan posed the wrong question: Is a given provision of the original Bill really a fundamental right?
The right question is whether the provision really guarantees a privilege or immunity of individual citizens rather than a right of states or the public at large. And when we ask this question, clause by clause, we must be attentive to the possibility, flagged by Frankfurter, that a particular principle in the Bill of Rights may change its shape in the process of absorption into the Fourteenth Amendment.

This change can occur for reasons rather different from those offered by Frankfurter, who diverted attention from the right question by his jaundiced view of much of the original Bill and by his utter disregard of the language and history of the privileges or immunities clause. Certain hybrid provisions of the original Bill-part citizen right, part state right-may need to shed their state-right husk before their citizen-right core can be absorbed by the Fourteenth Amendment.
Other provisions may become less majoritarian and populist, and more libertarian, as they are repackaged in the Fourteenth Amendment as liberal civil rights - "Privileges or immunities" of individuals- rather than republican political "right[s] of the people," as in the original Bill.

II. THE EASY CASE FOR INCORPORATION
A. The Text of the Fourteenth Amendment
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
So reads the second sentence of the Fourteenth Amendment-a sentence around which the entire incorporation debate has swirled. For however much they disagree about everything else, all the participants in the incorporation debate have found common ground in the belief that the answer to the debate lies in these words. In light of the stakes involved, and the brevity of the text, we would do well to weigh each word with care. And when we do, we shall see that the textual argument for incorporation-of a certain sort-is remarkably straightforward.
1. "No State shall ..."
For those in the incorporation camp, the key sentence gets off to a great start. Anyone paying the slightest attention to constitutional text would find the same phrase in Article I, Section 10 imposing various limitations on states, including several key rights designed principally for the benefit of in-state residents: "No State shall ... pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility." In 1810, Chief Justice Marshall's opinion for the Court in Fletcher v. Peck declared that the language of Article I, Section 10 "may be deemed a bill of rights for the people of each state" [114]-a phrase repeated by the Supreme Court in 1853 and again in 1866, the same year in which the Fourteenth Amendment was drafted. [115] Of course, the Court did not mean to suggest that the catalogue of Section 10 rights was identical to that set out in the first ten amendments-otherwise the entire Barron and incorporation debates would be moot. But the language of Fletcher and its progeny does confirm the rhetorical resonance between the phrase "No State shall" and the idea of a federally enforceable "bill of rights" against state governments. Madison had intuited this resonance a dozen years before Fletcher when he proposed to include in his "Bill of Rights" an amendment that "No State shall" abridge various rights of religion, expression, and jury trial.
[Page 1219]
Far more dramatic evidence of this resonance comes from Barron, where a unanimous Supreme Court stated that, had the framers of the original Bill of Rights meant to impose its rules on states, they would have used the Article I, Section 10 phrase "No State shall" or some reasonable facsimile thereof. But if the framers of the original Bill were entitled to rely on rules of construction implicit in the Philadelphia Constitution and made explicit by Publius in The Federalist No. 83, surely the framers of the Fourteenth Amendment were entitled to rely on the authoritative language of Barron itself. The Supreme Court Justices in Barron asked for "Simon Says" language, and that's exactly what the Fourteenth Amendment gave them.
Earlier drafts of the key sentence had omitted the words "No State shall" in favor of other formulations, but as Congressman John Bingham explained several years after the Amendment's adoption, he rewrote Section One in response to and in reliance upon Barron:
In reexamining that case of Barron, Mr. Speaker, after my struggle in the House in February 1866, ... I noted and apprehended as I never did before, certain words in that opinion of Marshall. Referring to the first eight articles of amendments to the Constitution of the United States, the Chief Justice said: "Had the framers of these amendments intended them to be limitations on the powers of the State governments they would have imitated the framers of the original Constitution, and have expressed that invention." Barron vs. The Mayor, &c., 7 Peters, 250.
Acting upon this suggestion I did imitate the framers of the original Constitution. As they had said "no State shall emit bills of credit, pass any bill of attainder, ex post facto law, or law impairing the obligations of contracts;" imitating their example and imitating it to the letter, I prepared the provision of the first section of the fourteenth amendment as it stands in the Constitution .... [116]
2. "... make or enforce any law which shall abridge ..."
As the key sentence rolls on, the incorporation reading gains steam. Various critical words of the next phrase-"make," "any," "law," and "abridge,"-call to mind the precisely parallel language in parallel sequence of the First Amendment-"make," "no," "law," and "abridging." [117] There are only three significant differences here.
First, the Fourteenth Amendment imposes a prohibition on states, whereas the First explicitly limits "Congress." But this is of course exactly the point of incorporation. And what better way to make clear that even rights and freedoms in the original Bill of Rights that explicitly limited "Congress" should hereafter [Page 1220] apply against states than by cloning the language of the First Amendment? (The word "abridge" in the Fourteenth Amendment is especially revealing, for nowhere outside the First Amendment had this word appeared in the Constitution before 1866). Thus, the Fourteenth Amendment announced its intention to go beyond the expressio unius arguments of William Rawle and John Barron, as had Lumpkin in Campbell, where the Georgia Chief Justice explicitly included First Amendment freedoms in his catalogue of rights binding states. [118]
Second, the Fourteenth Amendment uses the word "any" where the First uses "no," but here again, there is an obvious reason. Following the "Simon Says" rules of Barron "to the letter," the Fourteenth uses negative phrasing ("No State shall ...") where the First used affirmative ("Congress shall ..."). The substitution of "any" for "no" simply balances out the initial inversion.
Finally, the Fourteenth Amendment speaks of law "enforce[ment]" as well as law making. Once again, this makes perfect sense if its purpose was to incorporate the rights and freedoms of the original Bill. Many of the Bill's provisions, especially those in Amendments V-VIII, dealt centrally with the enforcement of laws by executive and judicial officers. However suggestive the tracking of the First Amendment may be, there is no suggestion thus far that only the First Amendment is to be incorporated.
3. "... the privileges or immunities ..."
Of course, my last sentence was a bit of a cheat; there is no suggestion "thus far" that only the First Amendment is to be incorporated because it is not yet clear what rights shall not be "abridge[d]" by states. The words we have considered so far are wonderfully suggestive-exactly what one would expect if incorporation were a goal of the Fourteenth Amendment-but hardly definitive. If the Fourteenth Amendment had stated that "No State shall make any law abridging the right to spit on sidewalks," no one could argue with a straight face for incorporation of the federal Bill of Rights.
Happily, the final words of the first clause are very different, and once again exactly what one would expect if incorporation of a certain sort-which I shall soon elaborate-were intended. Consider first the words "privileges" and "immunities." Now, these exact words do not appear in the Bill of Rights, but the words "right[s]" and "freedom[s]" speckle the Bill. [119] The plain meanings of these four words are virtually synonymous; indeed, the Oxford English Dictionary definition of "privilege" includes the word "right"; and of "immunity," "freedom." [120] What could be more common today than to speak of the [Page 1221] "privilege" against compelled self-incrimination, or the "immunity" from double prosecution? Nor is modern usage here any different from that of the eighteenth and nineteenth centuries. As Michael Kent Curtis observes in his illuminating and powerfully researched book on incorporation, the "words rights, liberties, privileges, and immunities, seem to have been used interchangeably." [121] To pick only one eighteenth-century example with obvious implications for the incorporation debate, the entitlements to civil and criminal juries, labeled in the Sixth and Seventh Amendments as "right s ," were described by the 1775 Declaration of the Causes and Necessity of Taking Up Arms as the "inestimable privilege of trial by jury." [122] A couple of generations later, Circuit Justice William Johnson described a congressional bill of 1822 as "in nature of a bill of rights, and of privileges, and immunities" of inhabitants of the Florida territory. [123] Among the rights listed in the bill were "freedom of religious opinions;" "the benefit of the writ of habeas corpus;" and protections against "excessive bail," "cruel and unusual punishments," and confiscation without "just compensation"-all phrased almost identically with their federal Bill of Rights counterparts. [124] Only weeks before adopting the Fourteenth Amendment, Congress passed the Civil Rights Act of 1866, widely seen as the statutory precursor of Section One. In draft, the Act spoke of "civil rights and immunities," leading its sponsor to play the role of law dictionary: "What is an immunity? Simply 'freedom or exemption from obligation ...."' [125]
We have already noted that most American lawyers began their legal education with Blackstone and the common law. When we turn to Blackstone, we find the words "privileges" and "immunities" used to describe various entitlements embodied in the landmark English "Charters of liberty" of Magna Charta, the Petition of Right, the Habeas Corpus Act, the English Bill of Rights of 1689, and the Act of Settlement of 1700. [126] As we have seen, these English documents were the fountainhead of the common law, and the widely understood source of many particular rights that later appeared in the federal Bill, sometimes in identical language. [127] After invoking Blackstone and the [Page 1222] above-listed landmarks, Chief Justice Lumpkin's opinion in Campbell unsurprisingly described various rights in the federal Bill as "privileges"-including the right at issue in Campbell itself, the right to be confronted with witnesses. [128] Lumpkin's ideas about Barron may have been unorthodox in 1852, but his language was utterly conventional; that same decade, the Supreme Court in Dred Scott labeled the entitlements in the federal Bill "rights and privileges of the citizen." [129]
4. "... of citizens of the United States;"
But even once we recognize that various "rights" and "freedoms" in the Bill are in every respect and for every purpose "privileges" and "immunities," there remains one final textual stumbling block. Can we really say that the Bill's "rights" and "freedoms" are truly privileges and immunities of "citizens of the United States?"
Of course we can. In ordinary, everyday language we often speak of the United States Constitution and Bill of Rights as declaring and defining rights of Americans as Americans. Surely our Constitution is not centrally about declaring, say, the rights of Frenchmen qua Frenchmen, or the Chinese qua Chinese. This ordinary, everyday understanding of the Constitution is emblazoned in the Preamble in words quite familiar to every generation of Americans since the Founding: "We the People of the United States, in Order to ... secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States."
This ordinary understanding is not in the least bit damaged by the technical objection to incorporation that Professor Louis Henkin has raised: "[T]he provisions of the Bill of Rights are not rights of citizens only but are enjoyed by non-citizens as well." [130] Surely the fact that Americans may often extend many benefits of our Bill to, for example, resident aliens-for reasons of prudence, principle, or both-does not alter the basic fact that these rights are paradigmatically rights of and for American citizens. Indeed, others may enjoy certain benefits only insofar as they interact with American citizens-typically because they either live on soil governed by American citizens or do things with important effects on American citizens. Peripheral applications of the Bill should not obscure its core.
In any event, Henkin's technical objection collapses under the weight of its own anachronism. At the time of the Fourteenth Amendment, the best [Page 1223] known case on the scope of the Bill of Rights was none other than Dred Scott, which involved, among other issues, questions arising under the due process clause of the Fifth Amendment. Dred Scott declared the rights in the Bill to be not simply privileges, but "privileges of the citizen. " [131] This passage must be read in combination with the rest of the opinion, holding that because Dred Scott was not a citizen of the United States, he could not enjoy the privilege of diversity jurisdiction-or indeed, any of the "rights, and privileges, and immunities, guarantied by the Constitution to the citizen." [132] The central meaning and logic of the opinion, which took pains to stress the words of the Preamble, [133] was that the Constitution and the Bill of Rights were ordained and established by citizens of the United States, and for their benefit only.
Surely the framers of the Fourteenth Amendment were entitled to rely on Supreme Court interpretations in Dred Scott no less than in Barron, even as they sought to overrule them using "Simon Says" language suggested by the Court itself. [134] And once again, it is clear that they did so rely. John Bingham, the main author of Section One, not only cited to Dred Scott in a speech before the House in early 1866, but quoted the following key language: "The words 'people of the United States' and 'citizens' are synonymous terms." [135] In the Senate debates on the Fourteenth Amendment, the most extended and authoritative discussion of Section One came from Jacob Howard, and he too made plain that the language chosen was in response to Dred Scott: [136]
[I]t is a fact well worthy of attention that the course of decision in our courts and the present settled doctrine is, that all these immunities, privileges, rights thus guarantied ... or recognized by [the first eight amendments to the Constitution] are secured to the citizen solely as a citizen of the United States ....
Though many aspects of Dred Scott were highly offensive to members of the Thirty-ninth Congress, there was widespread support for the idea that the Bill of Rights was paradigmatically, even if not exclusively, a catalogue of privileges and immunities of "citizens." [137] Nor was this locution anything new or startling. In both Nunn and Campbell, for example, Chief Justice Lumpkin had described the Bill of Rights as protecting "citizens." [138]
[Page 1224]
5. "... nor shall any State deprive any person of life, liberty, or property, without due process of law;"
Henkin's technical objection to incorporation does not merely dissolve; it boomerangs. By focusing our attention on Dred Scott and citizenship, Henkin unwittingly destroys another more familiar technical argument against incorporation. Many Commentators (Raoul Berger most stridently) have claimed that if the privileges or immunities clause was designed to incorporate the rights and freedoms of the Bill, the clause would incorporate the Fifth Amendment's due process requirement and thereby render the Fourteenth Amendment's due process clause redundant. [139] Berger's claim has loomed especially large because Justice Black, the leading judicial proponent of total incorporation, repeatedly ducked technical questions about the relationship between Section One's privileges or immunities and due process clauses. Instead, Black clung to the simple but vague formulation that the Fourteenth Amendment "as a whole" effected incorporation. [140] Professor John Hart Ely, while generally supportive of incorporation, went even further in legitimizing Berger's technical objection by frankly conceding the redundancy point. [141]
But we can now see why Berger's technical objection collapses, like Henkin's, and for the same reason. By incorporating the rights of the Fifth Amendment, the privileges or immunities clause would, under the precedent of Dred Scott, have prevented states from depriving "citizens" of due process. Bingham, Howard, and company wanted to go even further by extending the benefits of state due process to aliens. But for this, a special clause was needed speaking of "persons," not "citizens." As Bingham explained his amendment on the floor of the House:
Is it not essential to the unity of the people that the citizens of each State shall be entitled to all the privileges and immunities of citizens [of the United States]? Is it not essential ... that all persons, whether citizens or strangers, within this land, shall have equal protection in [Page 1225] every State in this Union in the rights of life and liberty and property? [142]
A few weeks later, Bingham reiterated the point in debates over the Civil Rights Act of 1866 when he proposed to substitute the word "inhabitant" for "citizen": "[A]re we not committing the terrible enormity of distinguishing here in the laws in respect to life, liberty, and property between the citizen and stranger within your gates .... Your Constitution says 'no person,' not 'no citizen,' 'shall be deprived of life, liberty, or property,' without due process of law." [143]
Howard's explanation to the Senate was identical. After explaining that the privileges and immunities of citizens of the United States included "the personal rights guarantied and secured by the first eight amendments of the Constitution"-a passage we shall return to later-he patiently elaborated that the subsequent clauses of Section One were needed to "disable a State from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State." [144] On this issue as well, the views of Bingham and Howard were widely shared by their Reconstruction colleagues. [145] Indeed, Section One's distinction between the rights of citizens and those of aliens stretches back to its earliest draft in committee: "Congress shall have power to ... secure to all citizens ... the same political rights and privileges; and to all persons in every State equal protection in the enjoyment of life, liberty, and property." [146]
But we have yet to feel the full zing of the anti-incorporation boomerangs, for just as Henkin's objection destroys Berger's, so Berger's emphasis on due process undermines Henkin. It would be odd to think that the words "due process" in the Fourteenth Amendment were intended to mean something very different than they did in the Fifth. Thus, when Andrew Jackson Rogers asked Section One's main architect, John Bingham, what he meant by "due process of law," Bingham tartly replied, "courts have settled that long ago, and the gentleman can go and read their decisions." [147] In 1866, the definitive statement of the meaning of the Fifth Amendment's due process clause was the [Page 1226] decade-old case of Murray's Lessee v. Hoboken Land & Improvement Co. In that case, a unanimous Supreme Court said that procedural due process embodied-incorporated, if you will-all the other procedural rules laid down in "the constitution itself." [148] Rawle had said much the same thing in his treatise thirty years earlier. [149] If, here too, the framers of the Fourteenth Amendment were entitled to rely on authoritative Supreme Court pronouncements (and it is hard to see why not), then the due process clause of the Fourteenth Amendment by itself embodied-incorporated-various procedural safeguards specified in Amendments V-VIII. That leaves only six amendments in the Bill-the first four and the last two-where the privileges or immunities clause has independent bite. [150] Of these six, five explicitly speak of the rights of "the people" [151]-a phrase that Dred Scott, John Bingham, and many other commentators understood as for many purposes synonymous with "citizens." For example, Senate rules circa 1866 did not permit foreigners to petition that body [152] because petition was a right "of the people." The fit between the explicit rights of "the people" in the original Bill and those provisions where the privileges or immunities clause has independent bite may not be perfect, but surely it is close enough to explain why so many in 1866 would have naturally thought of the nonprocedural provisions of the original Bill as rights of citizens. [153]
[Page 1227]
6. Beyond Mechanical Incorporation
We have now come slowly, but I hope surely, to the deep truth at the core of Hugo Black's observation that "the words 'No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States' seem ... an eminently reasonable way of expressing the idea that henceforth the Bill of Rights shall apply to the States." [154]
The best objection to Black's claim is that other language could have been used that would have expressed the purpose more clearly. [155] This objection does seem devastating to the particular brand of mechanical incorporation that Black's rhetoric at times appeared to suggest: that the privileges or immunities and due process clauses were simply terms of art referring to the first eight amendments in every jot and tittle, and to nothing else. If the key clauses of the Fourteenth Amendment meant Amendments I-VIII- no more, no less-why were the amendments not invoked by name? Why, indeed, use words like "privileges," and "immunities" which are only synonymous with, rather than identical to, the words of the first eight amendments themselves?
Black never offered satisfying answers to these questions, perhaps because the best answers require abandonment of mechanical incorporation. But for Black, part of the appeal of incorporation lay in its mechanical quality-its apparent ability to reduce judicial discretion by establishing an exact identity between the broad language of the Fourteenth Amendment and the seemingly more specific rules of Amendments I-VIII. [156] The framers of the Fourteenth [Page 1228]
Amendment did not share Black's preoccupation with mechanical rules [157] and wrote an amendment whose faithful interpretation and implementation, alas, cannot be mechanical. [158] The best reading of the Amendment suggests that it "incorporates" the Bill of Rights in a far more subtle way than Black admitted, including both more and less than Amendments I-VIII.
Clearly, the privileges or immunities clause encompasses more than the federal Bill as such. Article I, Section 9, for example, declares that "The Privilege of the Writ of Habeas Corpus shall not be suspended," except in certain limited circumstances. Though Rawle had claimed otherwise in 1825, Barron squarely held that this clause, like all the other provisions in Section 9, bound only the federal government. [159] By withholding habeas from blacks claiming to be kidnapped, antebellum Southern states had facilitated the capture and return of alleged fugitive slaves. [160] Though the Thirteenth Amendment had formally abolished slavery, states attempting to resurrect slavery de facto through Black Codes would predictably manipulate habeas to implement their scheme. Protecting the self-described "privilege" of habeas corpus against wayward states was thus of central concern to the framers of the Fourteenth Amendment. [161] In their initial pronouncements on the Fourteenth Amendment in the Slaughter-House Cases, the Justices on the Supreme Court disagreed sharply about quite a lot, but none denied the Great Writ was indeed a "privilege of citizens of the United States" protected against the infringement by the new Amendment. Indeed, Justice Miller's majority opinion, generally thought today to have rendered the privileges or immunities clause utterly meaningless, explicitly listed "the privilege of habeas corpus" in its catalogue of Fourteenth Amendment rights. [162]
So far, Justice Black may not have been troubled, for like Amendments I-VIII, the habeas clause is textually specified in the pre-1866 Constitution, and thus its incorporation too is relatively mechanical. [163] Indeed, Black might [Page 1229] have used Miller's concession to undermine the rest of Miller's argument, which seemed to resist, if not reject, total incorporation of the first eight amendments. Under what theory does the privileges or immunities clause incorporate the Great Writ specified in Article I, but not all the Great Rights specified after Article VII? It would be silly to argue that the difference is that the habeas clause used the magic word "privilege" whereas later clauses in the Bill only used synonyms like "right" or "freedom." (Interestingly, Justice Bradley's dissent in Slaughter-House not only argued for incorporation of all the "personal privileges and immunities ... specified in the original Constitution, or in the early amendments of it"; it also included in the catalogue "the right of habeas corpus." [164])
The habeas clause, however, presents hidden problems for Black as well, for its use of the word "privilege" calls attention to the word and naturally directs our gaze to the only other clause of the pre-1866 Constitution to use the word-the so-called comity clause of Article IV: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." These words clearly have some sort of connection to those of the Fourteenth Amendment-the pattern of the words "citizens," "privileges," and "immunities" in tight formation in both places calls for explanation. Black gave none. In the abstract, these words may not seem devastating to his mechanical view-especially in light of the widely held Republican view that these words in Article IV incorporated by reference the rights, freedoms, privileges, and immunities later specified in the federal Bill. [165] But in 1866, those Article IV words also came packaged with an influential judicial gloss. And just as we cannot fully understand the words "No State shall" without reading Barron; or the words "citizens of the United States" without reckoning with Dred Scott; or the meaning of "due process" without confronting Murray's Lessee; so here, we must consider the leading comity clause case on the books in 1866: Justice Bushrod Washington's 1823 Circuit Court opinion in Corfield v. Coryell.
In Corfield, Washington identified "privileges and immunities" as those which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union ... [including] the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess [Page 1230] property of every kind, and to pursue and obtain happiness and safety. [166]
Justice Washington went on to add to his nonexhaustive list "the benefit of the writ of habeas corpus" and the rights to "maintain actions of any kind in the courts" and to "take, hold and dispose of property, either real or personal." [167] Though he did not cite Blackstone by name, Washington seemed to be following a quintessentially common law approach in deducing "fundamental" rights.
We have seen this kind of thinking before in the common law approach of Barron contrarians such as Rawle and Lumpkin: fundamental rights deriving from a variety of sources-typically, nature and history-preexisted their textual specification in legislative codes. Where We the People had given our judicial imprimatur to a right by including it in the federal Bill, such a right was virtually by definition "fundamental." Indeed, Lumpkin described the Bill as "a legal decalogue for every civilized society, in all time to come," declaring "fundamental truths ... at the foundation of our free, republican institutions" and encompassing rights "at the bottom of every free government" [168] -formulations strikingly reminiscent of Corfield's ode to "fundamental" rights belonging to "the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of America."
As we have seen, Lumpkin also suggested that for institutional reasons, rooted in fear of judicial discretion, perhaps judges should not invalidate statutes in the name of fundamental rights that had not yet received the People's imprimatur. But when read through the lens of the Article IV comity clause, as glossed by Corfield's ode, the language of Section One opens up broader possibilities. Corfield's nonexhaustive list of fundamental rights radiated well beyond those enumerated in the federal Bill; and this open-ended list received considerable attention in the Thirty-ninth Congress. Thus, Senator Lyman Trumbull and Representative James Wilson both quoted Washington's ode, Blackstone, and other broad common law and natural rights language in support of their 1866 Civil Rights Act, whose provisions were generally understood to be subsumed within the privileges or immunities clause of the subsequent Fourteenth Amendment. [169] Corfield was again read broadly by Jacob Howard in his influential speech on Section One, which invoked both Washington's ode and the Bill of Rights as exemplifying "privileges and immunities of citizens of the United States." [170] Justice Black, however, stressed the Bill and shunned the ode. [171] For Black, Justice Washington's words conjured up the specter [Page 1231] of judges invalidating statutes by invoking nontextually specified fundamental rights and by giving common law rights, such as freedom of contract, constitutional status. The specter haunting Justice Black has a name. Its name is Lochner. [172]
Understanding that the privileges or immunities clause applied to various common law rights may not necessarily lead us to Lochner, however. For example, John Harrison has suggested that where a privilege or immunity derives not from the federal Constitution or Bill of Rights, but from common law or state law, the privileges or immunities clause prohibits only irrational discrimination in defining and enforcing these rights. [173] Detailed analysis of his thoughtful and intricate arguments would take us rather far afield; for our purposes it is enough to note that Section One is not limited to privileges and immunities specified in the pre-1866 Constitution. Other common law rights were also included, though there remain questions about the precise kind of protection intended. For these nonconstitutional rights, perhaps only antidiscrimination ("equal") protection should be accorded, rather than fundamental rights ("full") protection. [174] Questions also remain about judicial competence to find unspecified rights; [175] but those fundamental rights that had already been specified and "declared" by We the People were easy cases for full judicial protection, and thus at the core of the Fourteenth Amendment.
So much then for Section One's penumbral radiations beyond Amendments I-VIII, for this is only half the story. Section One means not just more than [Page 1232] mechanical incorporation but also less. [176] Once again, the habeas clause of Article I, Section 9 helps illustrate the point. Why does the Fourteenth Amendment incorporate this self-proclaimed privilege, but not, for example, its Section 9 companion clause, "No Capitation, or other direct, Tax shall be laid unless in Proportion to the Census or Enumeration herein before directed to be taken"? The answer goes beyond the fact that the capitation clause does not talk like a privilege; it doesn't walk or act like a private right either. Rather, it sounds in federalism, guaranteeing a fair distribution of the federal tax burden among states. As a state right of sorts, the capitation clause resists easy incorporation against states.
Yet as I have argued elsewhere, the same holds true for various provisions of the original Bill of Rights. [177] Justice Black himself saw the obvious difficulties of incorporating the Ninth and Tenth Amendments, which he read as pure federalism provisions. Thus, Black argued only for incorporation of the first eight amendments. But federalism insinuated itself throughout the original Bill of Rights: separating out citizen rights and state rights calls for a scalpel, not a meat cleaver. For example, is the establishment clause more like the habeas and free speech clauses (and thus an easy candidate for incorporation) or like the capitation clause and the Tenth Amendment (and thus rather awkward to incorporate)? Or is it, perhaps, some sort of sui generis hybrid that calls for "partial" incorporation? [178]
Mechanical incorporation, then, rests on an optical illusion that the Constitution defines government structure, and the Bill declares citizens rights (redefining "the Bill" of course, as the first eight, or perhaps nine, amendments). The reality is, alas, more complicated. [179] The original Constitution also declares rights (witness the habeas clause); the Bill also embodies structure (witness the Tenth Amendment); and both Constitution and Bill intertwine rights and structure.
The wording of the Fourteenth Amendment is remarkably sensitive to this more complicated reality. Section One requires us to ask whether a given provision of the Constitution or Bill really does declare a "privilege or immunity of citizens" rather than, for example, a right of states. The answer will often be anything but mechanical, requiring considerable judgment and hard choices. But this is exactly what the words of Section One demand. They avoid speaking of the "first eight amendments" or the "Bill of Rights" not just because these [Page 1233] words would have meant too little, but also because they would have meant too much. If "refined incorporation" of the sort I shall elaborate in Part III was indeed intended, it would have been hard to draft better language that the words in Section One.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.