Academic

Hardy on Popular Understanding of the 14th Amendment

By Lawrence Solum

David T. Hardy has posted Original Popular Understanding of the 14th Amendment as Reflected in the Print Media of 1866-68 on SSRN.  Here is the abstract:

In District of Columbia v. Heller, a majority of the U.S. Supreme Court endorsed a form of original popular understanding as its method of Constitutional interpretation. This method recognizes that, with a Constitutional provision, the critical question is not the intent of the body that proposed it, but the understanding of the people at large who ratified it.

This article applies original public understanding analysis to the 14th Amendment. It is possible to apply this method in a way not possible with regard to the framing of the original constitution. Both the outlets and the circulation of American print media massively expanded between 1791 and 1866. In 1866, just the three largest newspapers had a circulation that would (in proportion to population) equal two million modern readers. Further, the style of reporting tended toward reprinting transcripts of legislative debates, rather than digesting and interpreting them.

When original public understanding is applied to the 14th Amendment, the case for incorporation of the Bill of Rights via the Privileges or Immunities Clause appears exceptionally strong. A prime example is Senator Jacob Howard's floor speech, which specifically listed Bill of Rights liberties as meant to be within the Amendment's protection. Transcripts of his speech were carried on the front page of the New York Times and the New York Herald (then the largest newspaper in the United States). A transcript was also carried in the Philadelphia Inquirer, while smaller newspapers summarized it.

Full post as published by Legal Theory Blog on January 07, 2009 (boomark / email).