New Analysis of Contemporaneous Newspaper Articles (1868-69) About Incorporation of the Bill of Rights Through the 14th Amendment

For those inclined to look at original intent of the people who adopted constitutional amendments, the evidence in the popular press of 1868-69 was not very supportive of incorporation of the Bill of Rights through section 1 of the 14th amendment.  But it wasn't absent either.  This article, cited by Professor Solum on LegalTheoryBlog, finds the evidence equivocal. Click here for Abstract .  The argument may never be resolved whether Congress (which may well have intended incorporation to limit state power) ever clearly disclosed that intent to the state legislatures that ratified the 14th amendment.  It appears not a lot of state legislators or members of the public were aware, but that some were.  Of course, the issue is important only to academics, because the courts appear unlikely to reverse nearly a century of the development of personal rights, but the issue may be important as to the incorporation of other rights.  The article, written by George C. Thomas III of Rutgers University School of Law, Newark is very even handed and insightful.  It's hot off the press.