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SSRN Electronic Journal
Article . 2015 . Peer-reviewed
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Incorporation, Total Incorporation, and Nothing But Incorporation?

Authors: Green, Christopher R.;

Incorporation, Total Incorporation, and Nothing But Incorporation?

Abstract

Kurt Lash’s The Fourteenth Amendment and the Privileges and Immunities of American Citizenship (2014) defends the view that the Fourteenth Amendment’s “privileges or immunities of citizens of the United States” cover only rights enumerated elsewhere in the Constitution. My own book, however, Equal Citizenship, Civil Rights, and the Constitution: The Original Sense of the Privileges or Immunities Clause (2015), reads the Clause to broadly guarantee equality among similarly-situated citizens of the United States. Incorporation of an enumerated right into the Fourteenth Amendment requires, I say, national consensus such that an outlier state’s invasion of the right would produce inequality among citizens of the United States. Lash and I agree about a great deal, but this Essay provides a focused explanation of the clash between our two books.Searchable electronic databases have produced an amazing variety of new evidence and argument related to the Fourteenth Amendment’s original meaning and the enumerated-right controversy. Lash’s book shows vividly that there is an enormous amount that Black, Frankfurter, Fairman and Crosskey failed to uncover. Here, I raise six problems for Lash’s enumerated-rights-only view: (a) the gulf between the constitutional needs of the Founding and Reconstruction, (b) the inherent unabridgeability of federally-enumerated rights through state action, (c) textual and historical complications for sharply distinguishing Article IV from the Fourteenth Amendment, (d) equality-focused interpretations of the Louisiana Cession language and of the Privileges or Immunities Clause, explaining the Clause in terms of the Civil Rights Act of 1866, (e) 1866 disputes over voting rights and indefiniteness, incomprehensible on the enumerated-rights-only view, and (f) subsequent-interpretation evidence, especially the use of the enumerated-rights-only view against the Civil Rights Act of 1875.

Country
United States
Related Organizations
Keywords

Constitutional Law, Civil Rights and Discrimination, Fourteenth Amendment, State and Local Government Law, Incorporation Doctrine, United States Constitution 14th Amendment

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selected citations
These citations are derived from selected sources.
This is an alternative to the "Influence" indicator, which also reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Citations provided by BIP!
popularity
This indicator reflects the "current" impact/attention (the "hype") of an article in the research community at large, based on the underlying citation network.
BIP!Popularity provided by BIP!
influence
This indicator reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Influence provided by BIP!
impulse
This indicator reflects the initial momentum of an article directly after its publication, based on the underlying citation network.
BIP!Impulse provided by BIP!
0
Average
Average
Average
bronze