The Lost Compromise: Reassessing the Early Understanding in Court and Congress on Incorporation of the Bill of Rights in the Fourteenth Amendment

This article, analyzing debates in Congress and Supreme Court opinions and briefs between 1868 and 1880, proposes to overturn more than a century of conventional wisdom regarding the early understanding on whether the Fourteenth Amendment "incorporates" the Bill of Rights and applies it to the states. The prevailing orthodox view is that Justice Miller's 5-4 majority opinion in the Slaughter-House Cases (1873) rejected incorporation and gutted the Fourteenth Amendment Privileges and Immunities Clause. But in books published in 1953 and 1980, William Winslow Crosskey and John Hart Ely suggested that both the majority and dissenting justices in Slaughter-House may in fact have supported incorporation. Robert Palmer developed this idea in a 1984 article, as did Kevin Newsom in a 2000 article published shortly before the present article.This article builds in part on Crosskey, Ely, Palmer, and Newsom, and argues that total incorporation via the Privileges and Immunities Clause may indeed have been a minimum view (a potential compromise) accepted by all the justices in Slaughter-House. The article, however, has a considerably broader scope. It analyzes key source materials only lightly explored (if at all) by earlier scholars, most notably critical debates in Congress in 1873-74 and 1876. It disagrees with Newsom's analysis of post-Slaughter-House cases, and is the first work to consider in depth, in this regard, the contemporary briefs and arguments before the Court. That resource has rarely been explored in previous scholarship in this area, and produces surprising findings, including that incorporation was favorably discussed (and virtually unchallenged by any party) in the Slaughter-House briefs, and that the issue was not even properly before the Court in United States v. Cruikshank and Walker v. Sauvinet, key 1876 decisions which undermined the theory.The 1873-74 debates in Congress reveal that the Slaughter-House Cases were read in an incorporationist light by lawyer-politicians across the political spectrum - including, indeed especially, by the most conservative, anti-Reconstruction Southern Democrats. Indeed, the notion that the Fourteenth Amendment at least applies all textual Bill of Rights guarantees to the states appears to have briefly emerged as a baseline consensus during the early 1870s. But in a series of cases in the mid-to-late 1870s - including Edwards v. Elliott (1874), Cruikshank and Walker in 1876, and additional decisions in 1878 and 1880 - the Supreme Court seemed to abandon the incorporation theory. This article explores the previously unrecognized degree of discontinuity, poor or nonexistent reasoning, and outright procedural impropriety in these cases. The article also speculates about what might have caused the incorporation compromise to become lost, and concludes by suggesting that its historical insights should place the incorporation theory on a stronger foundation in the modern Court, which signalled in Saenz v. Roe (1999) a willingness to reexamine the Fourteenth Amendment Privileges and Immunities Clause.A sequel to this article, "The Road to Twining: Reassessing the Disincorporation of the Bill of Rights," 61 Ohio St. L.J. 1457 (2000) (available at http://ssrn.com/abstract=229443), pursues the treatment of the incorporation theory by the Supreme Court from 1880 to 1908. 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).