Legal Commentary

Is anyone besides myself bothered by the tendency of both originalists and anti-originalists to confuse dates when discussing the original understanding of ?incorporated? rights?

It happens all the time.  In discussing whether states must maintain a wall between church and state, everyone brings up Madison?s views on Virginia?s assessments for the Anglican Church or Jefferson?s letter to the Danbury Baptists or some other event close to 1791.  In discussing whether states must not outlaw firearms, we are treated to reams of discussion concerning the historical understanding of militias in the 18th century.  And now I read Gene Volokh's query about Rothgery, in which he asks whether anyone considers the ?the common law practice in the 16th and 17th centuries? when figuring out states? duties to provide counsel to the accused. 

But all of these cases deal with state powers under the 14th Amendment, not federal powers under the Bill of Rights.  True, the latter is used as a crude sort of gloss on the former, which is said to ?incorporate? the rights through the due process or privileges and immunities clause.  But it seems odd to say that a constitutional text enacted in 1868 to protect the freedmen from race riots and Black Codes incorporates not only the bare text of the Bill of Rights but also the obscure legislative history or social understandings associated with the 1791 amendments.  Why in the world would anyone think that Bingham, Howards, and the rest of the 39th Congress cared about the fine details of trial practice or militia regulation in the American colonial or Federalist period? 

The problem with such glib elision of the 14th Amendment and the Bill of Rights is that we lose our focus on the spirit and letter of the relevant history.  As Akhil Amar noted long ago, the Fourteenth Amendment is geared to address the states? signature failing ? namely, majoritarian passion, paradigmatically against the freedmen.  The Bill of Rights, by contrast, is largely geared to solving the problem of minoritarian control by ?Court elites? ? bureaucrats, military officers, judges, sycophants of monarchs, etc.  This difference in focus suggests that ?populist? rights ? the right to juries, the right to bear arms, perhaps the right against Established Churches ? ought to apply in a fundamentally different way against the feds than against the states.  And figuring out what rights against the states mean by looking at 18th century Country Party rhetoric about militias, judges, counsel, and so forth is a crazy enterprise.