ࡱ> ` bjbjss y*4444444$x1x1x1P1,1\ XJ\2r22223RNlzSXXXXXXX$YhE\^8X42V332V2V8X44224MXWWW2V4242XW2VXWW44W2P2 `u]x1VWXcX0XW\TW\W\4W$W2V2V2V8X8XW2V2V2VX2V2V2V2V #x1 x1X<444444  101 YLJ 1193 (Cite as: 101 Yale L.J. 1193) Yale Law Journal April, 1992 *1193 THE BILL OF RIGHTS AND THE FOURTEENTH AMENDMENT Akhil Reed Amar [FNd] Copyright 1992 by The Yale Law Journal Company, Inc.; Akhil Reed Amar CONTENTS INTRODUCTION ............................................................. 1194 I. ANTEBELLUM IDEAS ................................................... 1198 A. Barron .......................................................... 1198 B. The Barron Contrarians .......................................... 1203 1. The General Wording/Expressio Unius Theory .............. 1204 2. The Declaratory Theory .................................. 1205 C. The Contrarian Context .......................................... 1212 1. Technology, Geography, and Ideology ..................... 1212 2. Slavery ................................................. 1215 II. THE EASY CASE FOR INCORPORATION .................................... 1218 A. The Text of the Fourteenth Amendment ............................ 1218 1. 'No State shall ...' .................................... 1218 2. '... make or enforce any law which shall abridge ...' ... 1219 3. '... the privileges or immunities ...' .................. 1220 4. '... of citizens of the United States;' ................. 1222 5. '... nor shall any State deprive any person of life, liberty, or property, without due process of law;' ............... 1224 6. Beyond Mechanical Incorporation ......................... 1227 B. Glosses on the Text ............................................. 1233 1. The Thirtyninth Congress ............................... 1233 a. The Easy Case Made Easier ........................... 1233 b. Incorporating AntiIncorporation Insights ........... 1238 (i) Fairman ......................................... 1238 (ii) Berger ......................................... 1243 2. Ratification: The Sounds of Silence ..................... 1246 a. Ratification Silence and the Incorporation Debate ... 1246 b. Ratification Silence More Generally ................. 1251 3. Early Interpretations: In Search of Reasons ............. 1254 III. THE HARD PART OF INCORPORATION ..................................... 1260 A. The Problem: Fitting the Constitution's Pegs into Reconstruction Holes ............................................................ 1260 B. The Solution: Refined Incorporation ............................. 1262 1. Total and Selective Incorporation Revisited ............. 1262 2. A New Synthesis ......................................... 1264 3. A Founding Analogy ...................................... 1266 4. The Old Roots of the New Synthesis ...................... 1268 C. 'Refined Incorporation' Applied: The Rights of Expression ....... 1272 CONCLUSION ............................................................... 1284 *1194 INTRODUCTION What is the relationship between the Bill of Rights and the Fourteenth Amendment? Does the Amendment "incorporate" the Bill, making the Bill's restrictions on federal power applicable against states? If so, which words in the Fourteenth Amendment work this change? Are all, or only some, of the provisions of the first ten amendments "incorporated" or "absorbed" into the Fourteenth? If only some, which ones, and why? Once "incorporated" or "absorbed," does a right or freedom declared in the Bill necessarily constrain state and federal governments absolutely equally in every jot and tittle? Or, on the other hand, can a guarantee in the Bill ever lose something in the translation, so that only a part of the guaranteeperhaps only its "core" applies against state governments by dint of the Fourteenth Amendment? These questions have framed a debate that, in the words of Judge Henry Friendly, "go[es] to the very nature of our Constitution" with "profound effects for all of us." [FN1] Professor Van Alstyne has written that "it is difficult to imagine a more consequential subject," [FN2] an assessment confirmed by the extraordinary number of twentiethcentury legal giants who have locked horns in the debateHugo Black, Felix Frankfurter, William Brennan, Henry Friendly, William Crosskey, Louis Henkin, Erwin Griswold, and John Ely, to name only a few. Perhaps even more extraordinary has been the willingness of Supreme Court Justices to reinforce their judicial pronouncements on the issue with extrajudicial elaborations. For example, after his retirement from the bench and shortly before his death, Justice Frankfurter published as his parting words to *1195 the legal community an elaborate "memorandum" on "incorporation" in the Harvard Law Review, piling up case citations and other material to support his own preferred solution to the issue. [FN3] Three years later, Frankfurter's great sparring partner, Justice Black, publicly responded in his Carpentier Lectures, breaking "a longstanding rule of not speaking out on constitutional issues." [FN4] And in two James Madison Lectures delivered twentyfive years aparteach aptly titled "The Bill of Rights and the States"Justice Brennan expanded upon his own proposed solution to the incorporation conundrum. [FN5] When we shift our attention from lectures and law reviews to United States Reports, we see much more evidence of the centrality of the incorporation debate to twentiethcentury constitutional law. Consider, for example, the lead paragraph of the most famous footnote in Supreme Court history: "There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth." [FN6] In the halfcentury since Carolene Products, the Court has taken the hint of footnote four. A list of cases applying various parts of the Bill of Rights against states reads like the "greatest hits" [FN7] of the modern era: New York Times v. Sullivan, [FN8] Abington School District v. Schempp, [FN9] Mapp v. Ohio, [FN10] Miranda v. Arizona, [FN11] Gideon v. Wainwright, [FN12] Duncan v. Louisiana, [FN13] and on and on. Some cases, like Sullivan, merely applied provisions of the Bill of Rights that had long before been deemed "embraced within" the Fourteenth Amendment; others, like Duncan, achieved notoriety precisely because they decided to "incorporate" previously "unabsorbed" clauses. Speaking only of the latter set, Justice Brennan ranked the incorporation opinions ahead of reapportionment and desegregation cases as "the most important series of decisions of the Warren era." [FN14] In remarks sharply critical of Brennan and his brethren, Solicitor General *1196 Erwin Griswold offered an even more sweeping assessment of the stakes involved: "I can think of nothing in the history of our constitutional law which has gone so far since John Marshall and the Supreme Court decided Marbury v. Madison in 1803." [FN15] And yet, despite the importance of the topic and all the attention devoted to it, we still lack a fully satisfying account of the relationship between the first ten amendments and the Fourteenth. Minor variations aside, three main approaches have dominated the twentiethcentury debate. The first, represented by Justice Frankfurter, insists that, strictly speaking, the Fourteenth Amendment never "incorporated" any of the provisions of the Bill of Rights. [FN16] The Fourteenth requires only that states honor basic principles of fundamental fairness and ordered libertyprinciples that might indeed happen to overlap wholly or in part with some of the rules of the Bill of Rights, but that bear no logical relationship to those rules. The second approach, championed by Justice Black, insists on "total incorporation" of the Bill of Rights. [FN17] The Fourteenth Amendment, claimed Black, made applicable against the states each and every provision of the Bill, lock, stock, and barrelat least if we define the Bill to include only the first eight amendments. Faced with these diametric views, Justice Brennan tried to steer a middle course of "selective incorporation." [FN18] Under this third approach, the Court's analysis could proceed clause by clause, fully incorporating every provision of the Bill deemed "fundamental" without deciding in advance whether each and every clause would necessarily pass the test. Methodologically, Brennan's approach seemed to avoid a radical break with existing case law rejecting total incorporation, and even paid lip service to Frankfurter's insistence on fundamental fairness as the touchstone of the Fourteenth Amendment. In practice, however, Brennan's approach held out the possibility of total incorporation through the back door. For him, once a clause in the Bill was deemed "fundamental" it must be "incorporated" against the states in every aspect, just as Black insisted. And nothing in the logic of selective incorporation precluded the possibility that, when all was said and done, virtually every clause of the Bill would have been deemed fundamental. As we shall see, there is something to be said for each of these positions, but each is also fatally flawed. An alloy of the three seemingly incompatible elements will prove far more attractive and durable than each unalloyed component. But before such an alloy can profitably be forged, we need to do a *1197 considerable amount of preparatory work. In Part I, we shall examine antebellum ideas about whether the original Bill of Rights applied against the states. In Part II, we shall study with care the text and context of the Fourteenth Amendment. Finally, in Part III, we shall return to the Black BrennanFrankfurter debate, which I shall attempt to synthesize with a new model of incorporation. This synthesis, which I call "refined incorporation," begins with Black's insight that all of the privileges and immunities of citizens recognized in the Bill of Rights became applicable against states by dint of the Fourteenth Amendment. But not all of the provisions of the original Bill of Rights were indeed rights of citizens. Some instead were at least in part rights of states, and as such, awkward to incorporate fully against states. Most obvious, of course, is the Tenth Amendment, but other provisions of the first eight amendments resembled the Tenth much more than Justice Black admitted. Thus, there is deep wisdom in Justice Brennan's invitation to consider incorporation clause by clause rather than wholesale. But having identified the right unit of analysis, Brennan posed the wrong question: Is a given provision of the original Bill really a fundamental right? The right question is whether the provision really guarantees a privilege or immunity of individual citizens rather than a right of states or the public at large. And when we ask this question, clause by clause, we must be attentive to the possibility, flagged by Frankfurter, that a particular principle in the Bill of Rights may change its shape in the process of absorption into the Fourteenth Amendment. This change can occur for reasons rather different from those offered by Frankfurter, who diverted attention from the right question by his jaundiced view of much of the original Bill and by his utter disregard of the language and history of the privileges or immunities clause. Certain hybrid provisions of the original Billpart citizen right, part state rightmay need to shed their stateright husk before their citizenright core can be absorbed by the Fourteenth Amendment. Other provisions may become less majoritarian and populist, and more libertarian, as they are repackaged in the Fourteenth Amendment as liberal civil rights"Privileges or immunities" of individuals rather than republican political "right[s] of the people," as in the original Bill. Before we can properly elaborate and evaluate this synthesis, we must cover a considerable amount of ground. The best place to begin our journey is Barron v. Baltimore. [FN19] *1198 I. ANTEBELLUM IDEAS A. Barron In 1833, the Supreme Court confronted for the first time the argument that a state government had violated one of the provisions of the Bill of Rights. Narrowly framed, the issue raised by Barron was whether the Fifth Amendment's takings clause limited not just the federal government, but states and municipalities as well. The Court, however, saw that the reasoning behind John Barron's contention radiated much further. Perhaps the Court could have ruled for Barron without necessarily implying that each and every prohibition of the Bill of Rights would thenceforth bind states. For example, unlike the takings clause, the words of the First Amendment explicitly spoke of "Congress" as the target of limitation; and the logic underlying other particular provisions may also have made it peculiarly awkward to apply them against states. But the reasoning behind Barron's contention clearly would have required state compliance with a vast number of Bill of Rights prohibitions whose general language and logic made them indistinguishable from the takings clause. If the Fifth Amendment phrase, "nor shall private property be taken for public use without just compensation" limited states, so too, it would seem, did the Fourth Amendment phrase "no warrants shall issue, but upon probable cause," the Eighth Amendment phrase "excessive bail shall not be required," and so on. Barron thus presented a question "of great importance," as Chief Justice Marshall acknowledged at the outset of his opinion for the Court. [FN20] But Marshall immediately added that the question was "not of much difficulty," and went on to dismiss Barron's argument in less than five pages. One can quibble around the edges, [FN21] but the core of Marshall's argument is compelling. To be sure, the takings clause nowhere explicitly says that it ties the hands of the federal government only and not the states. But as Marshall explained, because state governments were already in place in the 1780's, the dominant purpose of the Constitution was to create, yet limit, a new central government. " l imitations on power, if expressed in general terms, are naturally, and, we think, necessarily applicable to the government created by the instrument"that is, the federal government. [FN22] Though he did not cite it by name, Marshall seems to have had in mind here the sweeping dictum of *1199 Hamilton's Federalist No. 83: "The United States, in their united or collective capacity, are the OBJECT to which all general provisions in the Constitution must necessarily be construed to refer." [FN23] Close inspection of the original Constitution confirms the soundness of the HamiltonMarshall rule of construction. In Article I, Section 9, for example, we find a purely general prohibition akin to the takings clause in its language and logic: "No Bill of Attainder or ex post facto Law shall be passed." Yet as Marshall forcefully noted, [FN24] this general prohibition limits only the federal government; hence the framers' inclusion of a separate clause explicitly limiting states, in Article I, Section 10: "No State shall ... pass any Bill of Attainder or ex post facto Law." The absence of any similarly explicit language limiting states in the takings clause cut strongly against Barron's claim. Had the framers of the clause meant to limit states, wrote Marshall, "they would have declared this purpose in plain and intelligible language," [FN25] like the "No State shall" phrasing of Article I, Section 10. . . . . . *1202 So far, so good for Marshall's opinion. But what makes Barron's holding compelling is neither its technical parsing of Article I, nor its use of lawyerly rules of construction, nor even the narrow legislative history of the Bill of Rights in Congress. Rather, it is what Marshall near the end of his opinion called the "universally understood" historical background of the Bill of Rights. [FN39] In state convention after state convention in 1787 88, AntiFederalists voiced loud concerns about a new, distant, aristocratic, central government that was being called into existence. [FN40] Many ultimately voted for the Constitution only because Federalists like Madison promised to consider a Bill of Rights soon after ratification. Madison of course kept his word, and knew that if he had not, states' rightists might have called a second constitutional convention to repudiate the basic structure of the Constitution he had labored so hard to build. [FN41] In short, without the good will of many moderate AntiFederalists, prospects for the new Constitution looked bleak in 178788; and a Bill of Rights was the explicit price of that good will. But the Bill of Rights that AntiFederalists sought was a Bill to limit the federal governmentnot just for the sake of individual liberty, but also to serve the cause of states' rights. [FN42] Madison and his fellow Federalists could hardly have placated their critics, or won over their skeptics, by sneaking massive new restrictions on states into apparently innocuous general language. Nor would AntiFederalists in Congress or in states have knowingly allowed such a trojan horse though the gates. Madison did openly advocate a small number of additional restrictions on statesclearly labeled as such in a package wrapped in the words "No State shall"but even that modest proposal was too much for a Senate jealously guarding states' rights. Barron's holding thus kept faith with both the letter and the spirit of the original Bill of Rights. We should not be surprised, then, that the decision in Barron was unanimous, or that the Court repeatedly and unanimously reaffirmed *1203 Barron's rule over the next thirtythree years in cases involving the First, Fourth, Fifth, Seventh, and Eighth Amendments. [FN43] B. The Barron Contrarians Having worked hard to understand Barron, we now must work equally hard to understand the contrary view, especially if we are to make full sense of the language and logic of the Fourteenth Amendment. In the fifteen years before Barron, a considerable number of weighty lawyers implied in passing or stated explicitly that various provisions in the Bill did limit states. Writing for the Court in 1819, Justice William Johnson obliquely suggested that the Seventh Amendment's guarantee of civil juries applied to states; [FN44] and the following year he stated even more explicitly in a separate concurrence that the double jeopardy clause "operates equally upon both state and federal governments," [FN45] although even here, his statement was not free from ambiguity. He may simply have meant that the clause applied whenever either of two prosecutions for the same underlying conduct was federal, even if the other was by state officials in state court for a state law crime. That same year, however, the New York Supreme Court stated in dictum that the double jeopardy clause "operates upon state courts" even where both prosecutions were for state law crimes. [FN46] In 1824, this view of the double jeopardy clause was pressed in the Massachusetts Supreme Court, yet neither the government's attorney nor the judges appeared to challenge itperhaps because even without the clause, the Commonwealth recognized a common law double jeopardy right at least as broad. [FN47] The following year, William Rawle published a widely read treatise on the Constitution in which he argued at length that virtually all the general *1204 provisions of the Bill of Rights bound states. [FN48] And as late as 1833, the year Barron came down, we find Justice Baldwin on circuit implying that the Second and Fourth Amendments applied against states, [FN49] and Justice Story in his own treatise on the Constitution taking an uncharacteristically agnostic, even nonchalant, position on the whole matter: It has been held in the state courts, (and the point does not seem ever to have arisen in the courts of the United States,) that [the Eighth Amendment] does not apply to punishments inflicted in a state court for a crime against such state; but that the prohibition is addressed solely to the national government, and operates, as a restriction upon its powers. [FN50] 1. The General Wording/Expressio Unius Theory What were these lawyers and judges thinking? Some may simply have not given much thought to the Barron issue, especially where the case at hand was disposed of on other grounds. And a merely casual look at, say, the double jeopardy clause might lead a judge to assume it applied to states as well; for as New York Chief Justice Ambrose Spencer noted, the language of the clause was "general in its nature, and unrestricted in its terms." [FN51] Rawle gave more attention to the matter and added an expressio unius argument that the contrast between the First Amendment's specific reference to Congress and the general language of various later amendments confirmed that they, unlike the First, applied to states. [FN52] As we have seen, Marshall refuted both of these arguments by his careful attention to Article I, Section 9. (What's more, the framers' reference to "Congress" in the First Amendment had nothing to do with the Barron issue; rather, it was probably an expression of the strong states' rights view that, unlike the areas addressed by later amendments, the First encompassed domains where Congress lacked enumerated power under Article I, Section 8.) [FN53] When forced to focus on this issue and only this issue in Barron, and when confronted by Marshall's textual analysis and historical narrative, Johnson and Baldwin reversed course, and Story fell into line. Barron, however, was hardly the last word, and the contrary view continued to find expression over the next thirtythree years. At times it appears that lawyers, having simply never heard of Barron and its progeny, casually assumed, *1205 along with Spencer or Rawle, that the general language of various provisions made application to states obvious. Thus in 1845, the Illinois Supreme Court noted in passing that the Fifth Amendment's due process clause limited state action, [FN54] and two years later Ohio Attorney General Stanberry glibly conceded in oral argument before the U.S. Supreme Court that double jeopardy was "forbidden, as well to the States as to the general government, by the fifth ... amendment ." [FN55] Like Justice Johnson thirty years earlier, however, Stanberry may have meant to limit his concession to situations where one of the two prosecutions was federal, and the other state. Most important for our purposes, we must note that several capable lawyers in the Thirtyninth Congress, the Congress that drafted the Fourteenth Amendment, seemed unaware of Barron until the case was brought to their attention by name by John Bingham, the principal draftsman of Section One of the Amendment. [FN56] 2. The Declaratory Theory It is tempting to dismiss all these folks as dolts, but we must resist. Modern academic law schools did not exist. Supreme Court reports were not as widely available as nowadays. And constitutional law took a back seat to common law in its importance to everyday legal practice. (Thus, one of the biggest constitutional issues of the antebellum era was whether the vast domain of common law was state law or federal law.) Wouldbe lawyers began their training with Blackstone's Commentaries, not United States Reports. But once we remember the centrality of Blackstone and the common law, we can see the Barron issue in a new light. For the common law method involved careful examination of codes, charters, statutes, and the like in an effort to distill their animating principlesthe spirit of the common law. Judges did not simply "make up" common law; they "found" it in authoritative legal sources, such as Magna Charta, the Petition of Right, the Habeas Corpus Act, and so on. Thus, even if the Bill of Rights did not, strictly speaking, bind the states of its own legislative force, was it not at least declaratory of certain fundamental common law rights? And should not these declarations by We the People inform a state judge's analysis? Thus we find Rawle in 1825 going beyond his narrow expressio unius argument by claiming that certain amendments "form parts of the declared rights of the people." [FN57] Tellingly, he stressed the preamble of the Second Amendment as "a declaration that a well regulated militia is necessary to the security of a free state." [FN58] Only after discussing the preamble alone did he *1206 quote its "corollary" that "the right of the people to keep and bear arms shall not be infringed," whose language, Rawle noted, was perfectly general. [FN59] Rawle then immediately invoked the English Bill of Rights of 1689 and Blackstone's analysis of the English common law right to bear arms. [FN60] For Rawle, all this suggested that the Second Amendment bound states. Nor did the Tenth Amendment stand in the way, for Rawle read its final clauses as acknowledging that "the people" had certain reserved rights in contradistinction toand against"the states." [FN61] Rawle's analysis and language here were perhaps no more than suggestive, but they sketched out lines of argument that later Barron contrarians would develop more fully. Narrowly understood, the "declaratory" view of the Bill of Rights could provide even state courts with principled rules of decision, both procedural and substantive, when no state statute spoke directly to a given issue. Such, for example, was the situation in the New York and Massachusetts double jeopardy cases in the 1820's. More broadly, the Bill could serve as a source of maxims, both political and judicial. Politically, a maxim like the preamble to the Second Amendment could warn the people of any state to be wary of any legislature, even a state legislature, that sought to disarm them. [FN62] Judicially, maxims drawn from the Bill of Rights could generate a set of rules of constructionwhat we would call today "clear statement rules"obliging a state legislature to speak with unmistakable clarity before trenching on a right "declared" in the U.S. Constitution. And in the hands of a strong believer in fundamental or natural rights, the "declaratory" view of the Bill could have even more farreaching consequences. As modern day legal positivists, we tend to view the Bill as creating or conferring legal rights. But the congressional resolution accompanying the Bill explicitly described some of its provisions as "declaratory." [FN63] To a nineteenthcentury believer in natural rights, the Bill was not simply an enactment of We the People as the Sovereign Legislature bringing new legal rights into existence, but a declaratory judgment by We the People as the Sovereign High Court that certain natural or fundamental rights already existed. [FN64] Under this view, the *1207 First Amendment was not merely an interpretation of the positive law code of the original Constitution, declaring that Congress lacked Article I, Section 8 enumerated power to regulate religion or suppress speech; the Amendment was also a declaration that certain fundamental "rights" and "freedoms"of assembly, petition, speech, press, and religious exercisepreexisted the Constitution. Why else, it might be asked, did the Amendment speak of "the" freedom of speech, implying a preexisting entitlement? [FN65] The Ninth and Tenth Amendments did more than make explicit rules of construction for interpreting the Constitution as a positive law code; they also declared that certain "rights" and "powers" were retained by "the people" and "reserved" to them in contradistinction to "states." Technically speaking, perhaps the Bill did not bind state governments of its own legislative force. But under the strong declaratory view, the result was virtually the same. An honest state court would be boundthough the precise nature of the obligation, legal or moral, was somewhat fuzzyto respect "declarations" of the High Court of We the People that certain "rights" and "freedoms" existed. [FN66] Unlike Rawle's expressio unius argument, demolished by Barron, this was an argument that states might be constrained even by the First Amendmentat least, by those clauses of the First Amendment that spoke of "rights" or "freedoms." (The establishment clause most distinctly did not.) The obligation here would seem at least as strong as the duty of the honest common law judge to consider well reasoned precedents from well respected sister courts in other jurisdictions. Or to take an example from modern day Supreme Court case law, the obligation roughly mirrored the later rule that federal judges should consult state constitutions and state statutes to determine what punitive practices are violations of contemporary morality and thus "cruel *1208 and unusual" within the meaning of the Eighth Amendment. [FN67] More expansively, it could be argued that the ratification of the Bill by the collective state legislatures estopped these bodies from denying that certain rights and freedoms existed. How, for example, could a state legislature disarm its people after it had ratified a document declaring that "A well regulated Militia [is] necessary to the security of a free State?" But how does all this fancy theorizing deal with the obvious objection that even if the Bill "declared" "rights" and "freedoms," it declared them only against the federal government? How could these declarations become transmogrified into limitations on states? There are really two objections hereone jurisprudential, and one constitutional. The jurisprudential objection is best framed by the work of the early twentiethcentury legal analyst, Wesley Hohfeld, who insisted that "rights" logically implied correlative "duties" imposed on discrete persons or entities. [FN68] The nature of a right is thus defined every bit as much by the party against whom the right runs as by its substantive sweep. The analytic truth of Hohfeld's insight is hard to quarrel with, but it would be anachronistic to read this insight back into all rights rhetoric, especially natural rights rhetoric, in mid to latenineteenthcentury America. Hohfeld, after all, was responding to nineteenthcentury judges and lawyers who were using the word "right" more looselysloppily, Hohfeld argued. This emphasis on the word "right" also helps answer the constitutional objection rooted in Barron. Marshall insisted on reading the Bill of Rights with the same rules of construction implicit in the original Constitution, especially Article I, Section 9. This is a view deeply supportive of the vision of the Bill that I have elsewhere elaborateda view of the Bill as fundamentally analogous to the original Constitution, intertwining structure (especially federalism) and rights. [FN69] But the declaratory view insisted that rights were different from structure. Here was a powerful wedge to break the linkage Marshall sought to forge between Article I, Section 9 and the Bill of Rights. For Section 9 never invoked the word "rights" in either its general or specific language. (Indeed, the only place where the word "right" appeared in the original Constitution wasof all places!the Article I, Section 8 copyright clause. [FN70]) The closest thing Section 9 offered to a declaration of right was its affirmation of "the *1209 Privilege of the Writ of Habeas Corpus"and we should note that Rawle insisted that this and only this provision of Section 9 bound states. [FN71] The Barron contrarians, then, denied that Section 9 was, as a general matter, truly "in the nature of a bill of rights." [FN72] The first ten amendments, by contrast, were commonly described as such, and used the words "rights" and "freedoms" over and overin no less than six different amendments. [FN73] Unlike Section 9, then, the Bill truly declared rights that, according to contrarian ideology, bound all governments. This way of thinking would have been deeply foreign to many of the men who had clamored for a Bill of Rights in the 1780's. The word "right" had no talismanic natural law significance; after all, many sought a Bill to conferor declarestates' rights, once again revealing the original intertwining of rights and structure. [FN74] So too, a feudal inheritance made it quite easy for many in the 1780's to intuit the idea Hohfeld would resurrect and refine after the heyday of natural rights talk in the midnineteenth century. Particularistic customs, charters, and the like gave distinct persons or entities distinct rights or privileges against distinct entities, but not others. [FN75] Indeed, much of the Declaration of Independence and its predecessor petitions can be seen as backwardlooking invocations of particularistic rules and customs. The Barron contrarians, by contrast, emphasized the Declaration's more sweeping and universalizing Enlightenment rhetoric of "selfevident truths" and the "inalienable rights" of "all men." Contrarians selfconsciously sought to distill the pure essence of rightscitizen rights, not state rightsthat had been blended with structural issues in the Bill. [FN76] As an interpretation of the original Bill, their view had huge problems, but as a vision of the future Bill, it deserves our careful considerationfor it was a view that would ultimately prevail in the language and logic of the Fourteenth Amendment. [FN77] The clearest contrarian articulations occurred in conscious reaction to Barron itself. In the 1840 case of Holmes v. Jennison, former New Hampshire Governor C.P. Van Ness politely but boldly attacked Barron in his oral argument before the Supreme Court: "With the utmost deference I beg leave to *1210 observe, that in my humble judgment, an error was committed by the Court ...." [FN78] After going out of his way to remind the Justices that the original amendments to the Constitution were "commonly called the bill of rights," he distinguished between certain provisions that were merely "limitations of power" and others that "are to be understood as declarations of rights." [FN79] This latter category, argued Van Ness, encompassed "absolute rights, inherent in the people, and of which no power can legally deprive them," "principles which lie at the very foundation of civil liberty, and are most intimately connected with the dearest rights of the people , .... p rinciples which ... deserve to be diligently taught to our children, and to be written upon the posts of the houses, and upon the gates." [FN80] Though not clearly developed, here lay seeds for a kind of selective incorporation based on whether a particular clause of the Bill was a mere "limitation of power" or alternatively a "declaration of right." Far more elaborate were various opinions of the Supreme Court of Georgia in the late 1840's and early 1850's, two of which were authored by Chief Justice Joseph Henry Lumpkin. In the first, Nunn v. Georgia, Lumpkin wrote that he was "aware" of contrary rulings (including, presumably Barron), but nevertheless invoked the Second Amendment to void a state statute. [FN81] Lumpkin began by emphasizing English common law rights that preexisted state and federal constitutions. For him, state constitutions "confer no new rights on the people which did not belong to them before." [FN82] So too, the federal Bill of Rights, "in declaring that the right of the people to keep and bear arms, should not be infringed, only reiterated a truth announced a century before, in the English Bill of Rights of 1689." [FN83] Like Rawle and Van Ness before him, Lumpkin stressed the Bill's declaratory and didactic nature. The people, wrote Lumpkin, adopted the Bill "as beaconlights to guide and control the action of state legislatures, as well as that of Congress. If a wellregulated militia is necessary to the security of the State of Georgia and of the United States, is it competent for the Georgia General Assembly to take away this security, by disarming the People?" [FN84] Like Rawle, Lumpkin seemed to deny that the Tenth Amendment was a purely state rights provision, for he read it to imply that "the people" had certain rights in contradistinction to the "states." And in asking the question whether arms bearing was "a right reserved to the *1211 States or to themselves i.e., the people ," [FN85] Lumpkin found dispositive the language of the Second Amendment declaring a "right of the people." Lumpkin reiterated and elaborated these themes in the 1852 case of Campbell v. Georgia, in which he explicitly cited Barron but once again held that the Bill's provisions generally bound states. [FN86] Though he did not "stop to examine" Barron in detail, [FN87] Lumpkin wisely avoided the expressio unius argument that Marshall had demolished and tried to outflank Marshall's historical narrative by widening the time frame. Once again, he began not with the framing of the federal Bill of Rights but with the ancient landmarks of the common law: "Magna Chartathe Petition of Rightthe English Bill of Rights of 1689 and more especially, ... the Act of Settlement, in Britain." [FN88] By emphasizing the common law background, Lumpkin could plausibly portray the federal Bill of Rights as added "out of abundant caution" to clarify preexisting legal rights. [FN89] And this declaratory purpose, Lumpkin argued, clearly justified application of the Bill to states, as emphasized by his own italics: The Bill of Rights' purpose "was to declare to the world the fixed and unalterable determination of our people, that these invaluable rights ... should never be disturbed by any government." The Bill was "our American Magna Charta." [FN90] Lumpkin then began a discussion about whether unenumerated "natural rights of man" "independently of [rights specified] in written constitutions" could ever limit American legislatures, quoting and paraphrasing broad natural law passages from various U.S. Supreme Court cases. [FN91] For reasons of institutional competence, Lumpkin did not "intend to put our opinion ... upon this foundation, however solid it may be." [FN92] Given that "our ideas of natural justice are vague and uncertain," perhaps a wideopen hunt for natural law would allow judges too much discretionfreedom to make, rather than find, natural law. [FN93] "But," Lumpkin argued, "as to questions arising under these amendments, there is nothing indefinite. The people of the several States, by adopting these amendments, have defined accurately and recorded permanently their opinion, as to the great principles which they embrace ...." [FN94] If this last argument *1212 looks vaguely familiar, it should. A century later another Southern judgeone Hugo LaFayette Blackwould make a strikingly similar argument on behalf of his crusade to "incorporate" the Bill of Rights against the states. *1218 II. THE EASY CASE FOR INCORPORATION A. The Text of the Fourteenth Amendment No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. So reads the second sentence of the Fourteenth Amendmenta sentence around which the entire incorporation debate has swirled. For however much they disagree about everything else, all the participants in the incorporation debate have found common ground in the belief that the answer to the debate lies in these words. In light of the stakes involved, and the brevity of the text, we would do well to weigh each word with care. And when we do, we shall see that the textual argument for incorporationof a certain sortis remarkably straightforward. 1. "No State shall ..." For those in the incorporation camp, the key sentence gets off to a great start. Anyone paying the slightest attention to constitutional text would find the same phrase in Article I, Section 10 imposing various limitations on states, including several key rights designed principally for the benefit of instate residents: "No State shall ... pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility." In 1810, Chief Justice Marshall's opinion for the Court in Fletcher v. Peck declared that the language of Article I, Section 10 "may be deemed a bill of rights for the people of each state" [FN114]a phrase repeated by the Supreme Court in 1853 and again in 1866, the same year in which the Fourteenth Amendment was drafted. [FN115] Of course, the Court did not mean to suggest that the catalogue of Section 10 rights was identical to that set out in the first ten amendmentsotherwise the entire Barron and incorporation debates would be moot. But the language of Fletcher and its progeny does confirm the rhetorical resonance between the phrase "No State shall" and the idea of a federally enforceable "bill of rights" against state governments. Madison had intuited this resonance a dozen years before Fletcher when he proposed to include in his "Bill of Rights" an amendment that "No State shall" abridge various rights of religion, expression, and jury trial. *1219 Far more dramatic evidence of this resonance comes from Barron, where a unanimous Supreme Court stated that, had the framers of the original Bill of Rights meant to impose its rules on states, they would have used the Article I, Section 10 phrase "No State shall" or some reasonable facsimile thereof. But if the framers of the original Bill were entitled to rely on rules of construction implicit in the Philadelphia Constitution and made explicit by Publius in The Federalist No. 83, surely the framers of the Fourteenth Amendment were entitled to rely on the authoritative language of Barron itself. The Supreme Court Justices in Barron asked for "Simon Says" language, and that's exactly what the Fourteenth Amendment gave them. Earlier drafts of the key sentence had omitted the words "No State shall" in favor of other formulations, but as Congressman John Bingham explained several years after the Amendment's adoption, he rewrote Section One in response to and in reliance upon Barron: In reexamining that case of Barron, Mr. Speaker, after my struggle in the House in February 1866, ... I noted and apprehended as I never did before, certain words in that opinion of Marshall. Referring to the first eight articles of amendments to the Constitution of the United States, the Chief Justice said: "Had the framers of these amendments intended them to be limitations on the powers of the State governments they would have imitated the framers of the original Constitution, and have expressed that invention." Barron vs. The Mayor, &c.,  HYPERLINK "http://www.westlaw.com/Find/Default.wl?rs=++++1.0&vr=2.0&DocName=7PET250&FindType=Y" 7 Peters, 250. Acting upon this suggestion I did imitate the framers of the original Constitution. As they had said "no State shall emit bills of credit, pass any bill of attainder, ex post facto law, or law impairing the obligations of contracts;" imitating their example and imitating it to the letter, I prepared the provision of the first section of the fourteenth amendment as it stands in the Constitution .... [FN116] 2. "... make or enforce any law which shall abridge ..." As the key sentence rolls on, the incorporation reading gains steam. Various critical words of the next phrase"make," "any," "law," and "abridge,"call to mind the precisely parallel language in parallel sequence of the First Amendment"make," "no," "law," and "abridging." [FN117] There are only three significant differences here. First, the Fourteenth Amendment imposes a prohibition on states, whereas the First explicitly limits "Congress." But this is of course exactly the point of incorporation. And what better way to make clear that even rights and freedoms in the original Bill of Rights that explicitly limited "Congress" should hereafter *1220 apply against states than by cloning the language of the First Amendment? (The word "abridge" in the Fourteenth Amendment is especially revealing, for nowhere outside the First Amendment had this word appeared in the Constitution before 1866). Thus, the Fourteenth Amendment announced its intention to go beyond the expressio unius arguments of William Rawle and John Barron, as had Lumpkin in Campbell, where the Georgia Chief Justice explicitly included First Amendment freedoms in his catalogue of rights binding states. [FN118] Second, the Fourteenth Amendment uses the word "any" where the First uses "no," but here again, there is an obvious reason. Following the "Simon Says" rules of Barron "to the letter," the Fourteenth uses negative phrasing ("No State shall ...") where the First used affirmative ("Congress shall ..."). The substitution of "any" for "no" simply balances out the initial inversion. Finally, the Fourteenth Amendment speaks of law "enforce[ment]" as well as law making. Once again, this makes perfect sense if its purpose was to incorporate the rights and freedoms of the original Bill. Many of the Bill's provisions, especially those in Amendments VVIII, dealt centrally with the enforcement of laws by executive and judicial officers. However suggestive the tracking of the First Amendment may be, there is no suggestion thus far that only the First Amendment is to be incorporated. 3. "... the privileges or immunities ..." Of course, my last sentence was a bit of a cheat; there is no suggestion "thus far" that only the First Amendment is to be incorporated because it is not yet clear what rights shall not be "abridge[d]" by states. The words we have considered so far are wonderfully suggestiveexactly what one would expect if incorporation were a goal of the Fourteenth Amendmentbut hardly definitive. If the Fourteenth Amendment had stated that "No State shall make any law abridging the right to spit on sidewalks," no one could argue with a straight face for incorporation of the federal Bill of Rights. Happily, the final words of the first clause are very different, and once again exactly what one would expect if incorporation of a certain sortwhich I shall soon elaboratewere intended. Consider first the words "privileges" and "immunities." Now, these exact words do not appear in the Bill of Rights, but the words "right[s]" and "freedom[s]" speckle the Bill. [FN119] The plain meanings of these four words are virtually synonymous; indeed, the Oxford English Dictionary definition of "privilege" includes the word "right"; and of "immunity," "freedom." [FN120] What could be more common today than to speak of the *1221 "privilege" against compelled selfincrimination, or the "immunity" from double prosecution? Nor is modern usage here any different from that of the eighteenth and nineteenth centuries. As Michael Kent Curtis observes in his illuminating and powerfully researched book on incorporation, the "words rights, liberties, privileges, and immunities, seem to have been used interchangeably." [FN121] To pick only one eighteenthcentury example with obvious implications for the incorporation debate, the entitlements to civil and criminal juries, labeled in the Sixth and Seventh Amendments as "right s ," were described by the 1775 Declaration of the Causes and Necessity of Taking Up Arms as the "inestimable privilege of trial by jury." [FN122] A couple of generations later, Circuit Justice William Johnson described a congressional bill of 1822 as "in nature of a bill of rights, and of privileges, and immunities" of inhabitants of the Florida territory. [FN123] Among the rights listed in the bill were "freedom of religious opinions;" "the benefit of the writ of habeas corpus;" and protections against "excessive bail," "cruel and unusual punishments," and confiscation without "just compensation"all phrased almost identically with their federal Bill of Rights counterparts. [FN124] Only weeks before adopting the Fourteenth Amendment, Congress passed the Civil Rights Act of 1866, widely seen as the statutory precursor of Section One. In draft, the Act spoke of "civil rights and immunities," leading its sponsor to play the role of law dictionary: "What is an immunity? Simply 'freedom or exemption from obligation ...."' [FN125] We have already noted that most American lawyers began their legal education with Blackstone and the common law. When we turn to Blackstone, we find the words "privileges" and "immunities" used to describe various entitlements embodied in the landmark English "Charters of liberty" of Magna Charta, the Petition of Right, the Habeas Corpus Act, the English Bill of Rights of 1689, and the Act of Settlement of 1700. [FN126] As we have seen, these English documents were the fountainhead of the common law, and the widely understood source of many particular rights that later appeared in the federal Bill, sometimes in identical language. [FN127] After invoking Blackstone and the *1222 abovelisted landmarks, Chief Justice Lumpkin's opinion in Campbell unsurprisingly described various rights in the federal Bill as "privileges"including the right at issue in Campbell itself, the right to be confronted with witnesses. [FN128] Lumpkin's ideas about Barron may have been unorthodox in 1852, but his language was utterly conventional; that same decade, the Supreme Court in Dred Scott labeled the entitlements in the federal Bill "rights and privileges of the citizen." [FN129] 4. "... of citizens of the United States;" But even once we recognize that various "rights" and "freedoms" in the Bill are in every respect and for every purpose "privileges" and "immunities," there remains one final textual stumbling block. Can we really say that the Bill's "rights" and "freedoms" are truly privileges and immunities of "citizens of the United States?" Of course we can. In ordinary, everyday language we often speak of the United States Constitution and Bill of Rights as declaring and defining rights of Americans as Americans. Surely our Constitution is not centrally about declaring, say, the rights of Frenchmen qua Frenchmen, or the Chinese qua Chinese. This ordinary, everyday understanding of the Constitution is emblazoned in the Preamble in words quite familiar to every generation of Americans since the Founding: "We the People of the United States, in Order to ... secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States." This ordinary understanding is not in the least bit damaged by the technical objection to incorporation that Professor Louis Henkin has raised: "[T]he provisions of the Bill of Rights are not rights of citizens only but are enjoyed by noncitizens as well." [FN130] Surely the fact that Americans may often extend many benefits of our Bill to, for example, resident aliensfor reasons of prudence, principle, or bothdoes not alter the basic fact that these rights are paradigmatically rights of and for American citizens. Indeed, others may enjoy certain benefits only insofar as they interact with American citizenstypically because they either live on soil governed by American citizens or do things with important effects on American citizens. Peripheral applications of the Bill should not obscure its core. In any event, Henkin's technical objection collapses under the weight of its own anachronism. At the time of the Fourteenth Amendment, the best *1223 known case on the scope of the Bill of Rights was none other than Dred Scott, which involved, among other issues, questions arising under the due process clause of the Fifth Amendment. Dred Scott declared the rights in the Bill to be not simply privileges, but "privileges of the citizen. " [FN131] This passage must be read in combination with the rest of the opinion, holding that because Dred Scott was not a citizen of the United States, he could not enjoy the privilege of diversity jurisdictionor indeed, any of the "rights, and privileges, and immunities, guarantied by the Constitution to the citizen." [FN132] The central meaning and logic of the opinion, which took pains to stress the words of the Preamble, [FN133] was that the Constitution and the Bill of Rights were ordained and established by citizens of the United States, and for their benefit only. Surely the framers of the Fourteenth Amendment were entitled to rely on Supreme Court interpretations in Dred Scott no less than in Barron, even as they sought to overrule them using "Simon Says" language suggested by the Court itself. [FN134] And once again, it is clear that they did so rely. John Bingham, the main author of Section One, not only cited to Dred Scott in a speech before the House in early 1866, but quoted the following key language: "The words 'people of the United States' and 'citizens' are synonymous terms." [FN135] In the Senate debates on the Fourteenth Amendment, the most extended and authoritative discussion of Section One came from Jacob Howard, and he too made plain that the language chosen was in response to Dred Scott: [FN136] [I]t is a fact well worthy of attention that the course of decision in our courts and the present settled doctrine is, that all these immunities, privileges, rights thus guarantied ... or recognized by [the first eight amendments to the Constitution] are secured to the citizen solely as a citizen of the United States .... Though many aspects of Dred Scott were highly offensive to members of the Thirtyninth Congress, there was widespread support for the idea that the Bill of Rights was paradigmatically, even if not exclusively, a catalogue of privileges and immunities of "citizens." [FN137] Nor was this locution anything new or startling. In both Nunn and Campbell, for example, Chief Justice Lumpkin had described the Bill of Rights as protecting "citizens." [FN138] *1224 5. "... nor shall any State deprive any person of life, liberty, or property, without due process of law;" Henkin's technical objection to incorporation does not merely dissolve; it boomerangs. By focusing our attention on Dred Scott and citizenship, Henkin unwittingly destroys another more familiar technical argument against incorporation. Many Commentators (Raoul Berger most stridently) have claimed that if the privileges or immunities clause was designed to incorporate the rights and freedoms of the Bill, the clause would incorporate the Fifth Amendment's due process requirement and thereby render the Fourteenth Amendment's due process clause redundant. [FN139] Berger's claim has loomed especially large because Justice Black, the leading judicial proponent of total incorporation, repeatedly ducked technical questions about the relationship between Section One's privileges or immunities and due process clauses. Instead, Black clung to the simple but vague formulation that the Fourteenth Amendment "as a whole" effected incorporation. [FN140] Professor John Hart Ely, while generally supportive of incorporation, went even further in legitimizing Berger's technical objection by frankly conceding the redundancy point. [FN141] But we can now see why Berger's technical objection collapses, like Henkin's, and for the same reason. By incorporating the rights of the Fifth Amendment, the privileges or immunities clause would, under the precedent of Dred Scott, have prevented states from depriving "citizens" of due process. Bingham, Howard, and company wanted to go even further by extending the benefits of state due process to aliens. But for this, a special clause was needed speaking of "persons," not "citizens." As Bingham explained his amendment on the floor of the House: Is it not essential to the unity of the people that the citizens of each State shall be entitled to all the privileges and immunities of citizens [of the United States]? Is it not essential ... that all persons, whether citizens or strangers, within this land, shall have equal protection in *1225 every State in this Union in the rights of life and liberty and property? [FN142] A few weeks later, Bingham reiterated the point in debates over the Civil Rights Act of 1866 when he proposed to substitute the word "inhabitant" for "citizen": "[A]re we not committing the terrible enormity of distinguishing here in the laws in respect to life, liberty, and property between the citizen and stranger within your gates .... Your Constitution says 'no person,' not 'no citizen,' 'shall be deprived of life, liberty, or property,' without due process of law." [FN143] Howard's explanation to the Senate was identical. After explaining that the privileges and immunities of citizens of the United States included "the personal rights guarantied and secured by the first eight amendments of the Constitution"a passage we shall return to laterhe patiently elaborated that the subsequent clauses of Section One were needed to "disable a State from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State." [FN144] On this issue as well, the views of Bingham and Howard were widely shared by their Reconstruction colleagues. [FN145] Indeed, Section One's distinction between the rights of citizens and those of aliens stretches back to its earliest draft in committee: "Congress shall have power to ... secure to all citizens ... the same political rights and privileges; and to all persons in every State equal protection in the enjoyment of life, liberty, and property." [FN146] But we have yet to feel the full zing of the antiincorporation boomerangs, for just as Henkin's objection destroys Berger's, so Berger's emphasis on due process undermines Henkin. It would be odd to think that the words "due process" in the Fourteenth Amendment were intended to mean something very different than they did in the Fifth. Thus, when Andrew Jackson Rogers asked Section One's main architect, John Bingham, what he meant by "due process of law," Bingham tartly replied, "courts have settled that long ago, and the gentleman can go and read their decisions." [FN147] In 1866, the definitive statement of the meaning of the Fifth Amendment's due process clause was the *1226 decadeold case of Murray's Lessee v. Hoboken Land & Improvement Co. In that case, a unanimous Supreme Court said that procedural due process embodiedincorporated, if you willall the other procedural rules laid down in "the constitution itself." [FN148] Rawle had said much the same thing in his treatise thirty years earlier. [FN149] If, here too, the framers of the Fourteenth Amendment were entitled to rely on authoritative Supreme Court pronouncements (and it is hard to see why not), then the due process clause of the Fourteenth Amendment by itself embodiedincorporatedvarious procedural safeguards specified in Amendments VVIII. That leaves only six amendments in the Billthe first four and the last twowhere the privileges or immunities clause has independent bite. [FN150] Of these six, five explicitly speak of the rights of "the people" [FN151]a phrase that Dred Scott, John Bingham, and many other commentators understood as for many purposes synonymous with "citizens." For example, Senate rules circa 1866 did not permit foreigners to petition that body [FN152] because petition was a right "of the people." The fit between the explicit rights of "the people" in the original Bill and those provisions where the privileges or immunities clause has independent bite may not be perfect, but surely it is close enough to explain why so many in 1866 would have naturally thought of the nonprocedural provisions of the original Bill as rights of citizens. [FN153] *1227 6. Beyond Mechanical Incorporation We have now come slowly, but I hope surely, to the deep truth at the core of Hugo Black's observation that "the words 'No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States' seem ... an eminently reasonable way of expressing the idea that henceforth the Bill of Rights shall apply to the States." [FN154] The best objection to Black's claim is that other language could have been used that would have expressed the purpose more clearly. [FN155] This objection does seem devastating to the particular brand of mechanical incorporation that Black's rhetoric at times appeared to suggest: that the privileges or immunities and due process clauses were simply terms of art referring to the first eight amendments in every jot and tittle, and to nothing else. If the key clauses of the Fourteenth Amendment meant Amendments IVIII no more, no lesswhy were the amendments not invoked by name? Why, indeed, use words like "privileges," and "immunities" which are only synonymous with, rather than identical to, the words of the first eight amendments themselves? . . . . . Section One means not just more than *1232 mechanical incorporation but also less. [FN176] Once again, the habeas clause of Article I, Section 9 helps illustrate the point. Why does the Fourteenth Amendment incorporate this selfproclaimed privilege, but not, for example, its Section 9 companion clause, "No Capitation, or other direct, Tax shall be laid unless in Proportion to the Census or Enumeration herein before directed to be taken"? The answer goes beyond the fact that the capitation clause does not talk like a privilege; it doesn't walk or act like a private right either. Rather, it sounds in federalism, guaranteeing a fair distribution of the federal tax burden among states. As a state right of sorts, the capitation clause resists easy incorporation against states. Yet as I have argued elsewhere, the same holds true for various provisions of the original Bill of Rights. [FN177] Justice Black himself saw the obvious difficulties of incorporating the Ninth and Tenth Amendments, which he read as pure federalism provisions. Thus, Black argued only for incorporation of the first eight amendments. But federalism insinuated itself throughout the original Bill of Rights: separating out citizen rights and state rights calls for a scalpel, not a meat cleaver. For example, is the establishment clause more like the habeas and free speech clauses (and thus an easy candidate for incorporation) or like the capitation clause and the Tenth Amendment (and thus rather awkward to incorporate)? Or is it, perhaps, some sort of sui generis hybrid that calls for "partial" incorporation? [FN178] Mechanical incorporation, then, rests on an optical illusion that the Constitution defines government structure, and the Bill declares citizens rights (redefining "the Bill" of course, as the first eight, or perhaps nine, amendments). The reality is, alas, more complicated. [FN179] The original Constitution also declares rights (witness the habeas clause); the Bill also embodies structure (witness the Tenth Amendment); and both Constitution and Bill intertwine rights and structure. The wording of the Fourteenth Amendment is remarkably sensitive to this more complicated reality. Section One requires us to ask whether a given provision of the Constitution or Bill really does declare a "privilege or immunity of citizens" rather than, for example, a right of states. The answer will often be anything but mechanical, requiring considerable judgment and hard choices. But this is exactly what the words of Section One demand. They avoid speaking of the "first eight amendments" or the "Bill of Rights" not just because these *1233 words would have meant too little, but also because they would have meant too much. If "refined incorporation" of the sort I shall elaborate in Part III was indeed intended, it would have been hard to draft better language that the words in Section One.     Page PAGE 1 Copr. ( West 2004 No Claim to Orig. U.S. Govt. Works Copr. ( West 2004 No Claim to Orig. U.S. Govt. Works +LQjmotjo !!!! 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