March 15, 2009
Rosenthal on the Original Understanding of Privileges or Immunities and Incorporation
Professor Lawrence Rosenthal (Chapman) just posted The New Originalism Meets the Fourteenth Amendment: Original Public Meaning and the Problem of Incorporation on ssrn. The piece is forthcoming in the Journal of Contemporary Legal Issues as part of a recent symposium hosted by U. San Diego's Center for the Study of Constitutional Originalism titled The Fourteenth Amendment and the Bill of Rights: What Have We Learned? Why Does it Matter?
Rosenthal argues that the original public understanding of the Fourteenth Amendment Privileges or Immunities Clause did not include incorporation of the first eight amendments to the states, even if the framers' intent did. He argues that this presents a problem for incorporation, especially in the wake of the Court's adoption of an original understanding approach in D.C. v. Heller (last term's Second Amendment case): If original understanding--the Court's preferred method of interpretation, as evidenced by Heller--doesn't support incorporation, there may be no real foundation for incorporation. In short, we may have an incorporation crisis. (Rosenthal only addresses the P or I Clause, because "[a]mong legal scholars, the case for due process incorporation is not taken terribly seriously"; instead, scholars look to the Fourteenth Amendment P or I Clause.)
Rosenthal starts by showing that the public understanding of "privileges and immunities" prior to ratification of the Fourteenth Amendment did not include incorporation of the first eight amendments to the states. Instead, public understanding was informed by Barron v. Mayor & City Council of Baltimore, which held that the "privileges and immunities" conferred by the first eight amendments did not apply to states. Rosenthal:
The framing-era public meaning of the privileges and immunities of citizens did not include a right to resist state laws thought to be violative of the first eight amendments. . . .
If anything, the privileges and immunities of citizenship included the right to enjoy the benefits of a state-law legal regime not subject to the restrictions of the first eight amendments. The antebellum conception of federalism, in short, understood the first eight amendments as protections for states' rights by limiting the powers of the federal government, rather than free-floating rights in need only of a "security device" to facilitate their enforcement against the states.
Rosenthal then argues that if public understanding of privileges and immunities included incorporation after ratification, it must be because the process of ratification itself changed the public understanding. But it didn't. Rosenthal:
Of course, precisely because the privileges and immunities of citizenship had previously been understood in light of Barron and Article IV, the incorporationist case necessarily requires evidence that the process of proposing and ratifying the Fourteenth Amendment changed the public's understanding of the privileges and immunities of citizenship. On this point, however, the evidence derived from the congressional debates is not encouraging for the incorporationists.
Moreover, neither the state ratification debates, nor judicial interpretations, nor period commentary reflect a public understanding of privileges and immunities that includes incorporation.
Rosenthal concludes that original understanding cannot be the only interpretive method for the purpose of incorporation via the Fourteenth Amendment. Indeed, "even considered in terms of [original understanding originalism], the meaning of the Fourteenth Amendment is not to be determined exclusively by historical argument." Instead, the Court should look to constitutional structure, theory, prudence, and national ethos in ruling on incorporation.
Rosenthal's piece is an important addition to a reinvigorated area--incorporation--given new importance in the wake of Heller. (The Court in Heller didn't address Second Amendment incorporation: The case was against the District of Columbia, not a state. But a Second Amendment incorporation case is surely headed to the Court soon.) And his analysis is thoughtful, thorough, and right on in terms of its original understanding approach and its arguments as to the shortcomings of that approach in the incorporation debate. Still, Rosenthal's thesis and many of the details are not uncontroversial, and readers should examine the piece alongside others' work. Rosenthal himself generously cites and actively engages at least two others (who also participated in the symposium): Professor and symposium keynote speaker Michael Kent Curtis (Wake Forest) and Professor Bryan Wildenthal (Thomas Jefferson). Their work is a good place to start.
This is a thoughtful and timely piece. I highly recommend it.
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