The Constitution, As of 1868

This post by Rick Hills at  PrawfsBlawg is fascinating.  Simple in some respects, and yet almost universally ignored.  The issue is whether we view the meaning of the Bill of Rights as applied to the state based upon what was intended in 1791. when it only applied to the feds, or whether the true “originalist” ideal should be based upon the understanding as of 1868, when the 14th Amendment was passed.

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?

Wow.  All this time we’ve had our eye on the wrong ball. 

Application of the bill of rights to the states comes courtesy of the 14th Amendment, 1868 vintage.  So when this amendment was passed, what then did they understand to be the impact to be?   Did they have the same originalist, textualist, living document arguments that we obsess over today, or was there an entirely different view of what the impact meant.

Lacking the depth of historical understanding needed to even broach the subject, I leave it to others to answer.  But the idea that we are looking to apply the first ten amendments based upon what the framers had in mind in 1791, a time when they were never thought to apply to the states but only to the new-born federal government, brings an entirely different dimension to the discussion.

And what if nobody even considered the idea in 1868, when the 14th Amendment was approved for an entirely different purpose, post-civil war, to address the many freedmen issues that arose in the wake of emancipation? 

How weird would it be if all these discussions were entirely misdirected based upon this one little detail.  This is just an incredibly fascinating wrinkle.

4 thoughts on “The Constitution, As of 1868

  1. Greybear

    Actually, the questions isn’t that convoluted. The 14th Amendment was written particularly to nullify the Dred Scott decision. Interestingly, Justice Taney listed some of the things that blacks would have to be allowed to do if indeed they were citizens of the U.S.

    “It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.”

    It would appear then, that at least as of 1856, it was the general understanding that any “citizen” was permitted to keep and carry arms wherever they wanted. Note that there is no exception for school zones, courthouses or any of the other exceptions currently under discussion.The right to keep and carry arms in any situation whatsoever was considered co-equal with the rights of speech, assembly and association. Obviously, in 1856 the Supreme Court considered the Second Amendment to apply as broadly as the First Amendment.

    I find it more than a bit interesting that the majority of people affected by the D.C. gun ban are…you guessed, black.

  2. SHG

    I don’t think he found it convoluted, but that few people (notably academics writing about originalists) consider the 14th Amendment passage as being the time frame for originalist considerations.  Frankly, I hadn’t thought about it at all, which is why I found it so fascinating.

  3. Greybear

    I see the point. Mine is that if you use 1868 as the “base” year, it would appear that the idea of the 2nd amendment as an individual right, on par with the 1st amendment, was pretty conclusively established. In fact, using mid-19th century understanding of the nature of the right doesn’t leave much room for ANY regulation.

  4. SHG

    I was just fascinated by the concept, having done little research into the history.  So, I appreciate the information you’ve brought to this (which I don’t find at all surprising) and, yet again, wonder why the lawprofs haven’t gone down this road.

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