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Nearly fifty years ago, Professor Charles Fairman published his seminal article, Does the Fourteenth Amendment Incorporate the Bill of Rights? According to Fairman, it does not. Fairman's analysis of the congressional debates and other historical data on the Fourteenth Amendment led him to conclude that the Privileges or Immunities Clause of the Amendment does not make the Bill of Rights applicable to the states. Instead, Fairman argued that the intent of the Amendment's framers is most nearly realized by the use of the Due Process Clause to enforce against the states only those rights “ ‘implicit in the concept of ordered liberty.’ ” Fairman reached this conclusion only by dismissing as unreliable numerous statements by Congressman John Bingham, the principal author of Section One of the Fourteenth Amendment. Bingham had repeatedly stated his belief that the Fourteenth Amendment would enforce the Bill of Rights against the states. Fairman argued that Bingham's position was muddled, inconsistent and idiosyncratic. Scholars came to view Fairman's work as the “classic” interpretation on this subject and, in the forty-four years since its first publication, his analysis has “shaped much of the constitutional field.” Many prominent writers adopted Fairman's interpretation of the incorporation debate, often sharing his assessment of Bingham's abilities. Indeed, Fairman's article has been one of the most cited law review articles written since World War II. Still, Fairman has not been without detractors. William Crosskey was, for many years, the most prominent critic of Fairman's work. Crosskey reviewed the same historical record as Fairman, but drew quite different conclusions. He described Bingham as an able person whose theories were “the common faith” of the Republican Party and argued that the historical evidence reveals that the framers of the Fourteenth Amendment intended the Amendment to enforce the Bill of Rights against the states. Despite Crosskey's analysis and exhaustive research, his critique did little to diminish acceptance of Fairman's work, perhaps because of Crosskey's unconventional ideas in other areas of constitutional law. For instance, Justice Felix Frankfurter, whose 1947 disagreement with Justice Black in Adamson v. California prompted Fairman's original project, never acknowledged Crosskey's criticisms of Fairman. More than a decade after Adamson, Justice Frankfurter remained convinced that Fairman's analysis was correct and described his proof as “conclusive.” As late as 1968, the exchange between Professors Fairman and Crosskey remained “the only full-dress discussion of [the incorporation debate] in legal periodicals” and was “far more comprehensive than any of the United States Supreme Court cases on this point.” A decade later, Raoul Berger published Government by Judiciary. Although much of Berger's book questioned the legitimacy of the Supreme Court's decisions in Brown v. Board of Education and Baker v. Carr, Berger also discussed whether the Fourteenth Amendment should be construed to enforce the Bill of Rights against the states. Relying on Fairman's analysis as well as his own reading of the original sources, Berger concluded that Bingham was a “muddled” thinker whose views should be discounted, and agreed with Fairman that the framers of the Fourteenth Amendment did not intend it to enforce the Bill of Rights against the states. Unlike Fairman, however, Berger rejected even selective incorporation, arguing that the Amendment's framers did not intend that any of the first eight amendments should be made applicable to the states through the Fourteenth Amendment. In 1980, Michael Kent Curtis responded to Berger's analysis in the first round of what was to become an extended exchange between the two. Curtis criticized both Fairman's and Berger's scholarship. He found Bingham's constitutional theory understandable, and, like Crosskey, concluded that the Fourteenth Amendment applied the Bill of Rights against the states. Building on the work of Crosskey, Curtis, and Alfred Avins, this Article seeks to strengthen the argument that the Fourteenth Amendment applies the first eight amendments to the states. In particular, this Article focuses on the ideas and influence of John Bingham, the Amendment's principal author. It identifies several sources, some not previously discussed in the literature on this subject, which demonstrate that Bingham intended the Fourteenth Amendment to enforce the Bill of Rights against the states and that many of his contemporaries shared his belief regarding the Amendment's purpose. This Article also argues that Fairman misread critical sources, relied on information taken out of context, ignored important contemporary materials, and buttressed his argument with a flawed legal theory. As a result, this Article argues, Fairman's portrait of John Bingham is distorted and unfaithful to the historical evidence. Part I of this Article describes the 1947 dispute between Justice Felix Frankfurter and Justice Hugo Black over incorporation and summarizes Fairman's subsequent analysis of the purpose of the Fourteenth Amendment with respect to the Bill of Rights. Part II criticizes Fairman's portrait of Bingham as “befuddled” and unreliable, arguing that a comprehensive and fair reading of the historical evidence shows that Bingham consistently espoused a cogent theory about the purpose of the Fourteenth Amendment, and that Fairman, not Bingham, was confused about the Amendment's purpose. Part III refutes Fairman's claim that Bingham's views were “singular,” and shows that, contrary to Fairman's assertions, many of Bingham's contemporaries shared his beliefs. Prior to the Civil War, proponents of antislavery constitutionalism supported legal arguments which coincided with elements of Bingham's constitutional theory. Between 1864 and 1871, congressional leaders, jurists, the Ohio Republican Party, the voters of Ohio, and nationally recognized authors of three major legal treatises all endorsed positions consistent with Bingham's constitutional theory. A fourth treatise, cited by Fairman to indicate the “singularity” of Bingham's views, does not, in fact, provide contemporary support for Fairman's argument. Part IV addresses Fairman's most credible argument. Fairman noted that during the period of the Amendment's ratification, jury practices of many states did not comply with the requirements of the Fifth, Sixth and Seventh Amendments. Fairman argued that had state representatives understood the Fourteenth Amendment to enforce the Bill of Rights against the states, they would not have voted to ratify the Amendment without first discussing the need to change provisions in their own constitutions and statutes that conflicted with the Bill of Rights. Part IV concludes, however, that the conflicts Fairman identified lack the interpretive power he attributed to them because, as Fairman's own examples indicate, many supporters of the Fourteenth Amendment were either unaware of or unconcerned with these conflicts. Part V documents the consistency between Bingham's views and the earliest federal cases interpreting the Fourteenth Amendment. It demonstrates that subsequent decisions such as the Slaughter-House Cases and United States v. Cruikshank repudiate rather than express the intent of the framers of the Fourteenth Amendment. Part VI concludes that Bingham's views on the Fourteenth Amendment should be credited and Fairman's scholarship on this subject disregarded. This Part sketches the application of Bingham's views to the current constitutional landscape and notes changes in incorporation doctrine that logically follow. Finally, it outlines the challenge to originalist thinkers to determine how the Supreme Court can properly determine which privileges or immunities, beyond the Bill of Rights, the Fourteenth Amendment protects.

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Yale Law Journal

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Reprinted by permission of The Yale Law Journal Company, Inc., from The Yale Law Journal, Vol. 103, pp. 57.