Academic

Thomas on Incorporation & Public Expectations

By Lawrence Solum

George C. Thomas III (Rutgers, The State University of New Jersey - School of Law-Newark) has posted Newspapers and the Fourteenth Amendment: What Did the American Public Know About Section 1? on SSRN. Here is the abstract:

For over sixty years scholars have debated whether Section 1 of the Fourteenth Amendment ?incorporated? the Bill of Rights guarantees and thus made them enforceable against the states. Recently, the debate has turned to what the state legislators might have known when they ratified the amendment. In this paper, presented at the University of San Diego Law School on January 7, George Thomas discusses the body of evidence already available and then presents new evidence gathered from a search of newspaper archives for the period 1865 to 1869. He discovered one newspaper article that clearly makes the incorporation case and three others that offer lesser degrees of support for the proposition that educated men of the era were aware that Section 1 included the Bill of Rights. But 96% of the articles that discussed ?privileges? and ?immunities? gave no hint of a connection with the Bill of Rights.

I saw Thomas present this paper back in January. Recommended.

For my take, see Incorporation and Originalist Theory

Full post as published by Legal Theory Blog on April 29, 2009 (boomark / email).