Article The Bill of Rights and the Fourteenth Amendment Akhil Reed Amart CONTENTS INTRODUCTION .......................................... 1194 I. ANTEBELLUM IDEAS ..................................... 1198 A. Barron .......................................... 1198 B. The Barron Contrarians...............................1203 1. The General WordinglExpressio Unius Theory ......... 1204 2. The Declaratory Theory ........................ 1205 C. The Contrarian Context .............................. 1212 1. Technology, Geography, and Ideology ............... 1212 2. Slavery .................................... 1215 II. THE EASY CASE FOR INCORPORATION ......................... 1218 A. The Text of the FourteenthAmendment .................... 1218 1. "No State shall... .. ............. ............ 1218 2. "... make or enforce any law which shall abridge. ." . 1219 3. ... the privileges or immunities. ."...... 1220 4. "... of citizens of the United States;".. .............. 1222 5. ".. nor shall any State deprive any person of life, liberty, or property, without due process of law;".. ............ 1224 6. Beyond Mechanical Incorporation ................. 1227 B. Glosses on the Text ................................. 1233 1. The Thirty-ninth Congress ....................... 1233 a. The Easy Case Made Easier .................. 1233 t Professor, Yale Law School. This Article is a sequel to Akhil Reed Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131 (1991). Both essays are part of a larger book-length treatment of the Bill of Rights to be published next year. 1194 The Yale Law Journal [Vol. 101: 1193 b. IncorporatingAnti-Incorporation Insights ......... 1238 (i) Fairman .............................. 1238 (ii) Berger ............................... 1243 2. Ratification: The Sounds of Silence ................. 1246 a. Ratification Silence and the IncorporationDebate ... 1246 b. Ratification Silence More Generally ............. 1251 3. Early Interpretations:In Search of Reasons ........... 1254 III. THB HARD PART OF INCORPORATION ....................... 1260 A. The Problem: Fitting the Constitution'sPegs into Reconstruc- tion Holes ........................................ 1260 B. The Solution: Refined Incorporation ...................... 1262 1. Total and Selective IncorporationRevisited ........... 1262 2. A New Synthesis .............................. 1264 3. A Founding Analogy ........................... 1266 4. The Old Roots of the New Synthesis ................ 1268 C. "Refined Incorporation" Applied: The Rights of Expression ..... 1272 CONCLUSION ............................................ 1284 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 transla- tion, 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."1 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 de- bate-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 I. Henry J. Friendly, The Bill of Rights as a Code of CriminalProcedure, 53 CAL. L. REV. 929, 934 (1965). 2. William W. Van Alstyne, Foreword to MICHAEL KENT CURTIS, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS, at ix (1986). 1992] The Bill of Rights 1195 the legal community an elaborate "memorandum" on "incorporation" in the HarvardLaw Review, piling up case citations and other material to support his own preferred solution to the issue.3 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.' 4 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 5 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 Consti- tution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth."6 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"7 of the modem era: New York Times v. Sullivan,8 Abington School District v. Schempp,9 Mapp v. Ohio,10 Miranda v. Arizona," Gideon v. Wainwright,2 Duncan v. Louisiana,13 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." 4 In remarks sharply critical of Brennan and his brethren, Solicitor Gen- 3. Felix Frankfurter, Memrandum on "Incorporation"ofthe Bill ofRights Into the Due ProcessClause of the Fourteenth Amendment, 78 HARV. L. REv. 746 (1965). Judge Friendly notes that this memorandum was Frankfurter's "last published work." Friendly, supra note 1, at 934 n.27. 4. William C. Warren, Foreword to HUGO LAFAYETrE BLACK, A CONSTITUTIONAL FAITH, at x-xi (1968); HUGO LAFAYETTE BLACK, A CONSTITUTIONAL FAITH, at xvi-vii, 34-42 (1968). 5. William J. Brennan, Jr., The Bill ofRights and the States, 36 N.Y.U. L. REV. 761 (1961) [hereinafter Brennan I]; William J. Brennan, Jr., The Bill of Rights and the States: The Revival of State Constitutions as Guardians ofIndividualRights, 61 N.Y.U. L. REV. 535 (1986) [hereinafter Brennan II]. 6. United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938). 7. This phrase is meant to suggest the importance of the cases and not necessarily their correctness. 8. 376 U.S. 254 (1964) (freedom of speech and press). 9. 374 U.S. 203 (1963) (nonestablishment of religion). 10. 367 U.S. 643 (1961) (exclusion of evidence obtained by unreasonable search and seizure); see also id. at 661-66 (Black, J., concurring) (relying in part on right against compelled self-incrimination). 11. 384 U.S. 436 (1966) (privilege against compelled self-incrimination and right to counsel). 12. 372 U.S. 335 (1963) (right to counsel). 13. 391 U.S. 145 (196S) (right to criminal jury). 14. Brennan 11, supra note 5, at 535-36; see also William J. Brennan, Jr., State Constitutionsand the Protectionof IndividualRights, 90 HARV. L. REV. 489, 492-93 (1977). 1196 The Yale Law Journal [Vol. 101: 1193 eral 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. "15 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 ap- proaches 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. 16 The Four- teenth 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.1 7 The Fourteenth Amend- ment, claimed Black, made applicable against the states each and every provi- sion of the Bill, lock, stock, and