University of Notre Dame

Reversing Incorporation

November 22, 2023

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Reversing Incorporation

Ilan Wurman*

It is originalist gospel that the Fourteenth Amendment’s Privileges or Immunities Clause was intended, at a minimum, to incorporate the Bill of Rights against the states.  This Article revisits forty years of scholarship and concludes that this modern consensus is likely mistaken.  Reconstructing antebellum discourse on fundamental rights reveals that the historical players assumed that every state must, as all free governments had to, guarantee and secure natural rights to their citizens.  But that did not mean the states regulated these rights in the same way, nor did that dictate what the federal government’s role would be in guaranteeing and securing such rights.  The record reveals that the antislavery and Republican concern, both before and after the adoption of the Fourteenth Amendment, was equality in civil rights however defined and regulated under state law.  In making this claim, this Article identifies a significant conceptual error pervasive in the literature: conflating the rights the first eight amendments secure with the first eight amendments themselves.  Merely identifying the freedom of speech or the right to bear arms as a privilege or immunity of United States citizenship tells us nothing about how various constitutional provisions would guarantee and secure them.

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© 2023 Ilan Wurman.  Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Associate Professor of Law, Sandra Day O’Connor College of Law, Arizona State University.  Thanks to my faculty colleagues at ASU; to the faculties at George Washington University, Texas A&M, and Northern Illinois; to the participants of the Lincoln Symposium and the 2023 Annual Conference of Constitutional Law Scholars in Tucson; to the Quill Project at Pembroke College, Oxford; and to Jud Campbell, Richard Epstein, Christopher Green, Tyler Lindley, Gerard Magliocca, and David Upham.  I also benefitted greatly from conversations with Randy Barnett and Akhil Amar, although, to be sure, we disagree.  Thanks also to my research assistants, Owen Alfonso, Renee Guerin, Matt Schiumo, and Aidan Wright, and to the ASU research librarians.