Enforcing the Bill of Rights Against the States: The History and the Future
This article traces, in broad strokes, the history of the disputes about whether or not the Bill of Rights can be enforced against the states.
It begins with pre-Fourteenth Amendment claims and recounts the actions of the 39th Congress: The Freedman’s Bureau, the Civil Rights Act of 1866, and the Fourteenth Amendment. Several speeches on the Amendment from the Congressional elections of 1866 are utilized, including those of Section 1 author John Bingham, Congressmen Columbus Delano, Rutherford B. Hayes, James Wilson, James Garfield, and Senator John Sherman, as well as Democrats who participated in what has been termed the most racist national political campaign in U.S. history.
By looking at the political shift begun in 1871 and the “long depression” (Panic of 1873), the article documents the reasons why the public understanding of the amendment can best be found during the period prior to ratification. There is a brief examination of Slaughter-House, Cruikshank, Hurtado, and Twinning. It suggests that one of the key mistakes in current scholarship is the assumption that certain rights could only be enforced by the state or the national government. Borrowing from Madison’s concept of “double security” and Pomeroy’s then contemporary treatise, it suggests that many rights can be protected by both.
Utilizing numerous articles from Harper’s Weekly, free speech is used as an illustration of the common, public understanding of the rights the public believe they had and intended to secure as a result of the war. The article explores common mistakes in confusing claims of substantive rights with non-discrimination and equality, noting that the two approaches often overlapped.
Later sections examine the debates involving Charles Fairman, W. W. Crosskey, Justice Frankfurter, Justice Black, Raoul Berger, Michael Kent Curtis, George Thomas and Bryan Wildenthal. The current perils of trying to rely exclusively upon incomplete and inaccurate newspaper data bases is documented.
New light is thrown upon the role of Senator Jacob Howard and his relationship Senator Fessenden, Chair of the Joint Committee on Reconstruction. Further, responding to another article in the symposium, this work concludes that the only real contemporaneous conflict between enforcing the Bill of Rights against the states and the grand jury was in the single state of Kansas.
Finally, there is a brief examination of the future of scholarship upon these issues.
Richard Aynes, Enforcing the Bill of Rights Against the States: The History and the Future, 18 Journal of Contemporary Legal Issues 77 (2010).