I just came across an interesting article by law professor George C. Thomas, “Thomas on Wildenthal on the 14th Amendment” (discussed on the Legal Theory Blog here).

A bit of background first. The meaning of the Fourteenth Amendment, “ratified” in 1868, has been debated for about 140 years now–and increasingly so in the last 90 or so years as the “Due Process” clause of that Amendment was used as a source of federal power over the states, via the “incorporation doctrine,” under which many of the rights implicit in the first 8 amendments of the Bill of Rights have been “incorporated” into the Due Process clause and thereby “applied” to the states (for discussion and criticism, see here, here, and here).

The standard line among libertarian proponents of the Fourteenth Amendment and its use by the federal courts as a tool to oversee and strike down “unconstitutional” state laws is that the Privileges or Immunities Clause is the proper basis for some sort of incorporation; but that the Supreme Court, in the 1873 Slaughter-House Cases inappropriately eviscerated the P-I clause, preventing its use for applying the Bill of Rights against the states.Thus, when the Court was ready to start incorporating rights against the states, the Court had to contort the Due Process clause to do the job the P-I clause was meant for (using the ridiculous idea that, in addition to “procedural due process”, there is also “substantive due process”–funny, I would have thought due process is, well, procedural). In any event the libertarian “incorporationists” urge that the P-I clause (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States“) should be “revitalized” to better legitimize expanded federal power over the states (see here, here, and here). But these libertarians accept the basic tenet of the pro-incorporationists, that the Fourteenth Amendment gives the federal government power to regulate and supervise the states with regard to a broad array of rights. They are of the view that “privileges or immunities” refers to a broad set of rights, such as the various fundamental rights express or implied in the Bill of Rights.

But does it? As Thomas notes, there has been a tremendous amount of debate about what “privileges or immunities” means, from Charles Fairman and Raoul Berger, on the anti-incorporation side, to William Crosskey, Michael Kent Curtis, and others (and various libertarian incorporationists) on the pro-incorporation side. What is striking about this article is that Thomas is no radical decentralist libertarian. He is a respected, mainstream law professor and constitutional scholar. In fact, he is personally “convinced that a plausible case can be made that Congress intended incorporation of most of the rights in the first eight amendments.” Despite this, he does not think the case has been made that this is the legal meaning of the Fourteenth Amendment. As he writes, “although many scholars have confidently claimed overwhelming historical evidence for, or against, incorporation, I am not in that camp. The evidence is sketchy, inconclusive, and subject to various plausible interpretations. The riddle will not go away because no one has solved it.”

He gives several persuasive reasons (one of which concerns the Twitchell case, discussed separately below in an appendix) for his view. He basically agrees with pro-incorporationist Bryan Wildenthal that because the states had to ratify the Fourteenth Amendment before it took effect, there has to be “fair notice” to the states “of the intended meaning before ratification binds the states to that meaning.” That is, “One must be satisfied that Congress ‘clearly, publicly, and candidly conveyed to the country’–the entire country, not just the East Coast–its intent to impose the first eight amendments on the states.” But as Thomas notes, even Wildenthal “concedes that evidence of ‘any strong public awareness of nationalizing the entire Bill of Rights’ is ‘vague and scattered.’” Therefore, thomas himself “remain[s] unsure if there is enough evidence to show a clear communication to the states and the country.”

I’ll discuss below in a bit more detail some of Thomas’s reasons behind his conclusion (or lack of conclusion), which is:

I do not claim that the evidence presented here settles the question. History cannot settle all questions, and I believe the Fourteenth Amendment riddle is one of them. Fairman and Berger do not persuade that history settles the incorporation question in the negative. Crosskey, Curtis, Amar, Wildenthal, and others, do not persuade that history settles the question the other way. It turns out that the Fourteenth Amendment riddle can be conclusively solved using existing evidence only by a magician’s parlor trick. Writers who claim that history settles the incorporation question … become magicians who distract the reader while they quietly put into place the presumptions that will provide clear proof. Even Wildenthal, whose work I greatly admire, eventually retreats to what is close to a “plain text” presumption. Now unburdened of any agenda, I can expose the trick for what it is. All efforts to solve the Fourteenth Amendment riddle to date have, alas, failed.

I come to my main point. If it is true that, at best, the Fourteenth Amendment does not clearly grant to the feds a host of new powers–and even if there are arguments for it (as Thomas himself leans toward), it is clear that there is no such clear grant–then it does not grant them. Just as we interpret serious agreements strictly, and against the drafter; just as we require formalities and writings for serious matters (such as living wills, sales of real estate, and so on), so a wide grant of power to the central state, in the context of a decentralist Constitution where the states historically jealously guarded their sovereignty, must be clear and expressly written to take effect. In other words, the central state should not be allowed–as a matter of constitutional or libertarian norms–to legitimately shift the balance of power away from the states, and toward itself, by vague and ambiguous wording that it itself drafted.

As Thomas notes,

To accomplish the seismic shift necessary to reverse Barron requires both clarity of expression and a public communication of the change …. The Court in The Slaughter-House Cases said that to read Section 1 broadly would “radically change[] the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people.”

So even if some libertarians would like the Fourteenth Amendment to have clearly incorporated the Bill of Rights–it simply did not do so. Maybe some, like Bingham, wanted it to. But he was unable to get his way. As Thomas explains,

The Thirteenth and Fifteenth Amendments accomplished even more fundamental seismic shifts in other tectonic plates that had undergirded our government, to be sure, but the wording of these amendments is crystal clear. Not so for Section 1 of the Fourteenth. It could have been crystal clear if Bingham had added a simple clause, as follows: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, including those defined in the first eight amendments to the Constitution.” Lacking that kind of clarity, we need more evidence than just the intent of the drafter. We want to know that the country intended to put Congress and the federal courts in charge of ensuring that the states follow the Bill of Rights.

Alas for the centralists, the evidence is lacking. And wishing does not make it so.

Twitchell

Thomas also discusses an illuminating Supreme Court case, Twitchell v. Commonwealth, decided only a year after the Fourteenth Amendment was ratified. In this case, a Pennsylvania state death case, “Twitchell claimed that Pennsylvania failed to follow the Sixth Amendment command that he be informed of ‘the specific nature of the accusation, so as that he might be enabled to prepare for a defence,’ and that the failure to comply with the Sixth Amendment meant that the warrant for his execution was ‘not a due process of law.’ In a unanimous opinion written by Chief Justice Salmon P. Chase, the Court refused to reach the merits of the appeal because it lacked jurisdiction to hear a case from a state court about the scope of the Fifth and Sixth Amendments.”

Thomas argues that this case is very good evidence that an “incorporationist” meaning of the Fourteenth Amendment was not known at the time of its ratification, for otherwise, this argument would have been raised and addressed here. Quoting a few selections from Thomas here:

We are to believe that the Court knew that the Sixth Amendment was now part of the Fourteenth but refused to connect the dots for the lawyer who based his argument on the wrong Due Process Clause. And then, according to Amar and Wildenthal, the Court affirmed Twitchell’s death sentence because his lawyer forgot to say, “Oh by the way, the Sixth Amendment applies to the states through the Fourteenth.” The sheer inhumanity that this argument entails is reason enough to reject it and conclude, instead, that the Court was not aware of incorporation theory. … Why did the Court not know about incorporation? Members of the Court had the opportunity to mingle with members of Congress much more then than today. The Court met in the Old Senate Chamber, which was next to the chamber where the Senate debated the Fourteenth Amendment. Four of the Justices roomed at the National Hotel, where four Senators and seven Representatives also roomed. Would something as visible and important to the future of the country as Section 1 of the Fourteenth Amendment not have come up in informal conversations? If it did, we must assume that the Bingham-Howard view was not widely held, not discussed, or, again, that the Twitchell Court was aware of incorporation and chose not to mention it. If Section 1 was not a topic of informal conversation between justices and congressmen, it is hard to believe that the public discourse was informed by the theory of incorporation. … The one inference that we can draw from Twitchell with certainty is that Twitchell’s lawyer, William Wheeler Hubbell, did not mention incorporation. … Hubbell argued in 1869 that the Sixth Amendment applied directly to the states, expecting to lose, because he thought he had no good argument. But that necessarily means that he did not understand the Fourteenth Amendment to make the Bill of Rights binding on the states. And if a constitutional theorist who had promoted the concept of incorporation did not share Bingham’s understanding, it is unlikely that the members of the Court would have had even an inkling about what Bingham was attempting to do. … The truth is that no one on the Twitchell Court understood the Fourteenth Amendment to incorporate the Sixth. The great clarity about incorporation that Amar believes ran, like water, through the halls of Congress did not seep into the Old Senate Chamber. Crosskey concedes this much, noting the “rather shocking, but by no means unique, indication of the inalertness of the men who composed the Court of the period.” … Amar signals the weakness of his argument here. After dismissing Twitchell as having no significance for the incorporation debate, Amar drops a footnote that begins, “Twitchell is perhaps explicable as an unthinking reflection of the notion that Section 1 would have its main application in the Southern states.” But if the Supreme Court that sat in the same building as Congress indulged “unthinking reflection” that Section 1 did not generally incorporate the Bill of Rights, or was “inalert” to this possibility, how are we to believe that the state legislatures knew of incorporation?

Thomas also notes that: