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Scholars seeking to master commentary on the original meaning of Section One of the Fourteenth Amendment confront a bewildering array of theories and schools of thought. Like the college freshman [...]

INTRODUCTION In 1871, John Bingham explained the meaning of the Fourteenth Amendment's Privileges or Immunities Clause--a clause Bingham himself drafted and had successfully convinced his colleagues to add to the [...]

We thank the Notre Dame Law Review for allowing us to respond to Kurt Lash's reply to our critique of his interpretation of the Privileges or Immunities Clause. We could [...]

The first ten amendments to the federal Constitution have no formal title. It is only by cultural tradition that Americans refer to these provisions as our national "Bill of Rights." Until recently, most scholars assumed that this tradition could be traced back to the moment of ratification. Over the last decade or so, however, a number of scholars have challenged this assumption. These "Bill of Rights revisionists" claim that Americans did not commonly refer to the first ten amendments as "the bill of rights" until the twentieth century. Prior to that, most Americans either did not believe they had a national bill of rights, or they would have more likely pointed to the Declaration of Independence as the country's "bill of rights." If the revisionists are right, then a substantial portion of constitutional historical scholarship is shot through with historical error, in particular scholarship supporting the incorporation of the Bill of Rights as part of the Fourteenth Amendment. This Article conducts an exhaustive investigation of political, legal, and cultural references to the "bill of rights" from the time of the Founding to Reconstruction (and beyond). These references, most of which are presented here for the first time, prove that the revisionist claims about the first ten amendments are false. Long before the twentieth century, and decades before Reconstruction, Americans commonly referred to the 1791 amendments as "the Bill of Rights." These references vastly outnumber historical references to the Declaration of Independence as a "bill of rights," and indicate that nineteenth-century Americans were not at all confused about the meaning and content of their national "Bill of Rights." If any revision is in order, it is the need to revisit and revise our understanding of how post-Civil War Americans abandoned the original federalist understanding of the Bill of Rights and embraced a new nationalist understanding of their enumerated rights. [ABSTRACT FROM AUTHOR]

The article discusses the possible roles of "The Federalist Papers" in the constitutional reconstruction efforts in the U.S., particularly in the framing and ratification of the 13th, 14th, and 15th amendments. Also cited are the authors of the essays, namely, John Jay, Alexander Hamilton, and James Madison, as well as the early disputes over individual authorship of the essays.

Changes in constitutional doctrine impose costs in terms of the values traditionally associated with the rule of law. Stability, predictability, and public confidence in the presumptive legitimacy of current law [...]

American courts have traditionally followed the general principle of limited enumerated federal power in determining the scope of national authority. Recently, however, a group of influential constitutional scholars such as [...]

TABLE OF CONTENTS PROLOGUE INTRODUCTION I. STATE SUABILITY BEFORE CHISHOLM A. Historical Scholarship and the Eleventh Amendment B. The Roots of the Eleventh Amendment 1. The Original Debates Regarding Delegated [...]

When Joseph Story published his Commentaries on the Constitution in 1833, he dedicated the work "To the Honorable John Marshall," whose "expositions of constitutional law enjoy a rare and extraordinary [...]

The incorporation of the Bill of Rights against the states by way of the Fourteenth Amendment raises a host of textual, historical, and doctrinal difficulties. This is true even if (especially if) we accept the Fourteenth Amendment as having made the original Bill of Rights binding against the states. Does this mean we have two Bills of Rights, one applicable against the federal government with a "1791" meaning and a second applicable against the state governments with an "1868" meaning? Do 1791 understandings carry forward into the 1868 amendment? Or do 1868 understandings of the Bill of Rights carry backward into the 1791 amendments through the doctrine of "reverse incorporation"? This essay proposes a new way to solve these conundrums and reconcile the original Bill of Rights with the incorporated Bill of Rights and do so in a manner consistent with a historically based understanding of the Fourteenth Amendment. When the people adopted the Fourteenth Amendment into existence, they readopted the original Bill of Rights, and did so in a manner that invested those original 1791 texts with new 1868 meanings. There is only one Bill of Rights--the one the people spoke into existence in 1791 but then respoke in 1868. This respoken Bill of Rights is now one of the privileges or immunities of citizens of the United States which neither state nor federal government may abridge. [ABSTRACT FROM AUTHOR]