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The 1791 Understanding of the Bill of Rights Versus the 1868 Understanding
Andrew Hyman

Professor Kurt Lash recently proposed that the first two clauses of the 14th Amendment “respoke” the Bill of Rights, and thus gave to the older words of 1791 an updated meaning as of 1868.  He suggests that the 1868 meaning applies against both the state and federal governments, and that the older 1791 meaning applies against no government at all.  As Professor Lash puts it: “My claim here is simply that the people of 1868 believed that citizens of the United States had one Bill of Rights, and they communicated words that made this 1868 understanding of that Bill enforceable against both state and federal governments.”

This is an interesting proposal, and I would not rule it out.  I’m inclined to agree that there is only one Bill of Rights protecting citizens in the same way from both the federal and state governments, and that it applies against the states only via the Privileges or Immunities Clause rather than the Due Process Clause.  But, unlike Professor Lash, I suspect that the meaning of our single Bill of Rights was established in 1791 rather than 1868.  My only caveat is that the Due Process Clause *may* be an exception, both because it is explicitly written into the 14th Amendment, and also because  a particular (non-substantive) meaning was attributed to it by the U.S. Supreme Court in the 1850s.  The rest of this blog post focuses entirely on the other parts of the Bill of Rights rather than the DP Clause.

The two clauses that Professor Lash thinks “respeak” the Bill of Rights are the Privileges or Immunities Clause and the Citizenship Clause.  Both of these clauses are applicable only to citizens, which raises a question: what about “respeaking” the rights of persons who are not citizens, such as the right of tourists in the United States to be free from cruel and unusual punishments inflicted by the federal government? Perhaps one might argue that noncitizens’ Bill of Rights protections were somehow modified and updated by the last two clauses in Section One of the 14th Amendment, in combination with the first two clauses, but that seems convoluted, especially because those last two clauses only apply against the states.

Even if we just focus on citizens alone, and forget about noncitizens, the first clause of the 14th Amendment expressly says only who is constitutionally entitled to citizenship, without expressly speaking about the rights associated with citizenship, much less modifying those citizenship rights.  It is true that many express clauses of the Constitution have implied consequences, but here we are contemplating an implication of another implication: the first alleged implication is that the Citizenship Clause implies a bundle of rights in the language of the 1791 Constitution, and the second alleged implication is that this implied 1791 language is impliedly imbued with 1868 meanings.  I happen to agree with the first implication, but the alleged implication of that implication seems much more tenuous.

Professor Lash points out that the Thirteenth Amendment uses the same language as the older Northwest Ordinance, while meaning something different and more thoroughly abolitionist. However, in that situation the Thirteenth Amendment did not refer back to the Northwest Ordinance and instead actually repeated the older language so that a reader could understand it without even knowing the Northwest Ordinance ever existed.  By contrast, a reader of the first two clauses of the 14th Amendment must refer to some other clauses or sources to figure out what privileges or immunities are at issue.  Moreover, Section 3 of the 14th Amendment clarified the 13th Amendment by denying “any claim for the loss or emancipation of any slave….”  So, precedents like this do not quite support what Professor Lash suggests.

Professor Lash also asserts that, “The original meaning of the Bill of Rights had to be reshaped before these 1791 provisions could be applied against the States.”  That’s doubtful.  The First Amendment did not guarantee that states could pass laws establishing religion, limiting the exercise of religion, or punishing seditious speech; it merely had that effect because amendments like this one proposed by James Madison were rejected: “No State shall violate the equal rights of conscience, or the freedom of the press….”  That amendment by Madison would have existed quite comfortably alongside the First Amendment, without contradiction.

Additionally, I am skeptical that the Bill of Rights as understood in 1867 was always (or usually) of greater benefit to citizens than the original understanding in 1791.  For example, a newspaper hit by numerous libel lawsuits in 1791 and then found innocent in federal court was entitled to attorney’s fees, but by 1868 the “American Rule” required the newspaper to pay its own attorney fees even though it did nothing wrong.  Professor Lash suggests that perhaps “the original Freedom of Speech and Press Clauses communicated nothing more than freedom from prior restraints….”  I don’t believe those clauses were so stingy.  As Madison once said, “The state of the press, therefore, under the common law, cannot, in this point of view, be the standard of its freedom in the United States.”  That’s because “the freedom of speech” referred to the freedom that existed in the thirteen states as of 1790, not at another place or an earlier time.

There is good evidence that Republicans in the 1860s were originalists, and thus that they would have favored the original meaning of the Bill of Rights once they were persuaded of their own errors.  For instance, at the 1860 Republican National Convention, David Wilmot said: “It is our purpose to restore the Constitution to its original meaning; to give to it its true interpretation; to read that instrument as our fathers read it. (Applause.)”.  Wilmot did not say, “It is our purpose to update the Constitution by keeping its words but ejecting their original meaning; to give to it a modern interpretation; to read that instrument as we believe it ought to be read.”

I agree with much of Professor Lash’s Fourteenth Amendment scholarship, and might end up agreeing with this new paper too, but not today, for the reasons explained.  Incidentally, I hope to have a blog post up soon discussing the interpretation given by Professors Barnett and Bernick of the Civil Rights Act of 1866.