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The Lost Compromise: Reassessing the Early Understanding in Court and Congress on Incorporation of the Bill of Rights in the Fourteenth Amendment BRYAN H. WILDENTHAL* This articleproposes to overturn more than a centry 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 Privileges and Immunities Clause. Professor Wildenthal contends, however, that total * Associate Professor of Law, Thomas Jefferson School of Law, San Diego, California. A.B., 1986, J.D., 1989, Stanford University. I dedicate this article with love and admiration to the judge for whom I had the honor of clerking immediately after law school on the U.S. Court of Appeals for the Eleventh Circuit, the Honorable Frank Minis Johnson, Jr. (Oct. 30, 1918- July 23, 1999). See generally JACK BASS, TAMING THE STORM: TH1LIFE AND TIMES OF JUDGE FRANK M. JOHNSON, JR. AND THE SoUTm's FIGHr OVER CwIL RIGHTS (1993); FRANK SIKORA, THE JUDGE: THm LIFE AND OPINIONS OF ALABAMA'S FRANK M. JOHNSON, JR. (1992). A towering figure in both American law and the Second Reconstruction of America's South, he became for me, as for his legion of other law clerks, a mentor and friend we will never forgeL Given the historical subject matter of this article, the Judge would have been proud, I know, to share this dedication with his great-grandfather Francis Marion Treadaway, Confederate soldier and Reconstruction-Era Republican Sheriff of Fayette County, Alabama, who courageously battled the Ku Klux Klan and upheld the rule of law when the Fourteenth Amendment was young. See BASS, supra, at 5-8; SIKORA, supra, at 71-77; ALLEN W. TRELEASE, WHrIE TERROR: TIE KU KLUX KLAN CONSPIRACY AND SOUTHERN RECONSTRUCIION 267-69, 306, 410 (1971); see also infra note 113. I will always be grateful to my high school American history teacher Patricia Puckett, who first inspired my interest in the Reconstruction Era and its idealistic legacy for our nation. I presented a talk on this article at Thomas Jefferson School of Law on September 29, 1999, and I thank the participants from all three San Diego law schools for their feedback. For their generosity in reviewing and commenting upon the article, I especially thank (while of course taking full blame myself for any errors or eccentricities herein): Dean Richard Aynes of University of Akron School of Law; Associate Dean Daniel Farber of University of Minnesota Law School; Professor John Hart Ely of University of Miami School of Law; Professor Ronald Krotoszynski of Washington and Lee University School of Law; Associate Dean Marybeth Herald and Professor Susan Tiefenbrun of Thomas Jefferson School of Law; Professor Emeritus Harold Hyman of Rice University History Department; and above all, Professor Michael Kent Curtis of Wake Forest University School of Law, whose encouragement was especially heartening. I also thank Thomas Jefferson School of Law and Dean Kenneth Vandevelde for a summer stipend to complete this article. Finally, I owe a very special thanks to Thomas Jefferson School of Law librarians Brent Bemau and Dorothy Hampton, and library assistant John Femandez, for their tireless and cheerful help in locating and working with various nineteenth-century briefs, congressional records, and treatises. 1052 OHIO STATE LA WJOURNAL [Vol. 61:1051 incorporation via that Clause may have been a minimum compromise view accepted by all the Justices in Slaughter-House. The article builds in part on prior scholarly work suggesting and developing this reading of the opinions themselves, andsupports that readingby analyzing sourcespreviously untapped in this regard These sources include briefs and arguments presented to the Supreme Court and, most dramatically,debates in Congress during 1873-74. The latter debates reveal that the decision was read in an incorporationistlight by lawyer-politiciansacross thepolitical spectrum, including (indeed,especially) by the most conservative, anti-Reconstruction Southern Democrats. Indeed, the notion that the FourteenthAmendment at least applies all textual Bill of Rights guarantees to the states, and that even the Slaughter-House majority embraced such a view, appearsto have briefly emerged as a baseline consensus duringthe early 1870s. In a series of cases in the mid-to-late 1870s, however-most notably Edwards v. Elliott (1874), Walker v. Sauvinet (1876), and United States v. Crulkshank (1876)-the Supreme Court undermined andseemed to abandonthe incorporationtheory. ProfessorWildenthal explores thepreviously unrecognized degree of discontinuity,poor or nonexistent reasoning,and outrightprocedural impropriety in the latter cases. He also speculates about what might have caused the incorporation "compromise" to become lost. The article concludes by suggestingthat this historicalevidence shouldplace the incorporationtheory on a strongerfoundation in the modern Court,which recently signalled, in Saenz v. Roe (1999), a willingness to re-examine and give new life to the Fourteenth Amendment Privileges and Immunities Clause. In a sequel to this article, forthcoming in the next issue of the Ohio State Law Journal, Professor Wildenthal pursues the treatment of the incorporation theory on the Supreme Court after 1880, culminating in Twining v. New Jersey (1908). 2000] LOST COMPROMISE 1053 TABLE OF CONTENTS I. INTRODUCTION: PIcKING UP THE THREADS OF AN OLD DEBATE .............................................................................................. 1054 A. The Need ForReassessment: Saenz v. Roe, Slaughter- House, and the Future ofthe FourteenthAmendment Privilegesand Immunities Clause............................................. 1055 B. An Overview of the Debateon the Original Understanding............................................................................ 1067 ]I. THE ENIGMA OF SLAUGHTER-HOUSE ................................................ 1079 A. Introduction and 1868-1873 Developments ............................. 1079 B. Article lVand the Equal-Rights-Only Theory .......................... 1085 C. JusticeField vs. JusticeMiller .................................................. 1094 D. JusticesBradley andSwayne and the Briefs............................. 1102 E. The Textual IncorporationCompromise ................................... 1111 I1. THE POST-SL UGHTER-HOUSEUNDERSTANDING: THE UNRAVELING CONSENSUS ................................................................. 1116 A. The Understandingin Congress................................................ 1116 1. The Civil Rights Bill Debates of1873-1874 ...................... 1116 2. The BlaineAmendment Debates of1876 ........................... 1125 3. Cooley's Views ..................................................................... 1130 4. Conclusion ........................................................................... 1134 B. The Confusion in the Supreme Court,Part 1: Edwards and Walker ................................................................................. 1135 C. The Confusion in the Supreme Court,Part 2: Cruikshank .................................................................................. 1147 IV. CoNcLusioN: MAKING SENSE OF THE PUZZLE AND LOOKING AHEAD ...............................................................................................1161 1054 OHIOSTATE LAWJOURNAL [Vol. 61:1051 The question may be asked, fils [the FourteenthAmendment Privileges andImmunities Clause] not dangerous to the States? My answer is, no; that it involves no danger to the States or to State rights. Forwhat does it amount to... ? Simply this: that rights which the citizen ofthe United States enjoys under the Federal Constitution, and which the Federal Government cannot deprive him of shall not be abridgedby the State In other words it is an extension of the guaranteesof liberty and of the Bill of Rights ... preventing the States themselves from depriving their citizens of those guarantees.... If [that] is not the true readingof that amendment, then [the Privileges and Immunities Clause] either means nothing, or it means much more than the people of the United States ever intended .... I I. INTRODUCTION: PICKING UP THE THREADS OF AN OLD DEBATE This article revisits the most durable and ceaselessly provocative controversy in American constitutional law: the Great Debate over "incorporation," or whether and to what extent the Fourteenth Amendment applies to the states the guarantees of the federal Bill of Rights.2 That debate has turned in part on the proper scope of the Privileges and Imnunities Clause of the Fourteenth Amendment.3 In particular, this article revisits the debates and decisions bearing 12 CONG. REC. app. 244 (Apr. 30 & May 4, 1874) (Sen. Thomas M. Norwood, D-Ga.). 2 See U.S. CoNsT. amends. I-VIII, XIV. The Ninth and Tenth Amendments do not enter into the discussion for the most part, since they do not refer to any particular individual rights. See U.S. CONST. amends. IX-X. On the other hand, the Constitution does contain additional references to individual rights outside the first ten amendments. See infra note 94. 3 Section 1 of the Fourteenth Amendment, with which this article is concerned, reads in full: All persons born or naturalized in the United States, and subject to the jurisdiction thereot are citizens of the United States and of the State wherein they reside. No State shall

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