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2 Stan. L. Rev. 5 (1949-1950)
Does the Fourteenth Amendment Incorporate the Bill of Rights: The Original Understanding

handle is hein.journals/stflr2 and id is 33 raw text is: Does the Fourteenth Amendment
Incorporate the Bill of Rights?
Ti O IGiNAL UNDERSTANDING
CH~is FAMIAN
My study of the historical events that culminated in the Four-
teenth Amendment, and the expressions of those who sponsored and
favored, as well as those who opposed its submission and passage,
persuades me that one of the chief objects that the provisions of the
Amendment's first section, separately, and as a whole, were intended
to accomplish was to make the Bill of Rights, applicable to the states.
With full knowledge of the import of the Barron decision, the fram-
ers and backers of the Fourteenth Amendment proclaimed its pur-
pose to be to overturn the constitutional rule that case had an-
nounced. This historical purpose has never received full considera-
tion or exposition in any opinion of this Court interpreting the
Amendment.-Mr. Justice Black dissenting, in Adamson v. Cali-
fornia, 332 U.S. 46, 71 (1947).
The question to be explored is, was this the understanding of
the import of the privileges and immunities, due process, and
equal protection clauses of Section i of the Fourteenth Amend-
ment, or of any one of those clauses, at the time the Amendment
was adopted? This involves an attempt to apprehend the views of
the members of the Congress that proposed the Amendment,
and to appreciate the significance of the action of the state legis-
latures when they considered ratification.
This is not a merely academic question. It presents itself in-
sistently today because Justices of the Supreme Court are pre-
pared to make decisions turn upon their reading of the historical
record. The conclusion of the minority in the Adamson case,' in
June 1947, that a fresh reading of the history warranted the over-
turning of a long line of decisions, was reaffirmed by the same
Justices in Wolf v. Colorado2 in June 1949. The line of cases is
discussed by my colleague, Professor Morrison, in the article that
followsa The present discussion looks to events in i866-68 or soon
* Professor of Law and of Political Science, Stanford University. See also President's
Page, page 3, supra.
1. Adamson v. California, 332 U.S. 46 (1947).
2. 338 U.S. 25 (1949).
3. See p. 140 inIra.

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