Original Popular Understanding of the 14th Amendment As Reflected in the Print Media of 1866-1868

David T. Hardy

Abstract

The controversy between 14th Amendment total incorporation under the privileges or immunities clause, and selective incorporation under its due process clause, has remained quiescent in recent years. Now, two cases pending in the lower Federal courts are making bids to revive the controversy that once generated a feud between Justice Black and Justice Frankfurter. Both the 7th and the 9th Circuits have ordered expedited review of these appeals; one is being argued in January, the other in April.

In the last Term, a majority of the Supreme Court accepted a variant of original public meaning as the key to ascertaining constitutional meaning; the focus of this interpretative methodology is not upon Congressional understanding in proposing a constitutional provision, but upon the likely understanding of the public that ratified it. The Congressional understanding of the 14th Amendment has been exhaustively explored in the literature; its public understanding has not.

This article represents the first serious attempt to ascertain that understanding, using original research into the print media of 1866-68. It suggests that the Congressional debates entered directly into the original public understanding, and that the reading public was exceptionally well-informed as to the sponsors’ purposes. Specifically, the public was informed of Sen. Jacob Howard’s floor speech describing the Amendment as incorporating the Bill of Rights. The key portions of his speech were reprinted on the front page of the New York Times and the New York Herald, in the Philadelphia Inquirer, and in a number of smaller newspapers. Critics of privileges or immunities incorporation have claimed that the sponsors’ explanations did not enter the public discourse. Those claims are no longer viable.