those rights. The historical context also clarifies two other understandings implicit in that answer. One, no one believed that Section 1 incorporated the Bill of
Rights. Two, the proponents of the amendment anticipated that state governments would continue to exercise broad discretion in defining the incidents of
the rights which were guaranteed.
Illuminating as this common understanding is, it does not provide definitive
answers to every contemporary question about the meaning of the Fourteenth
Amendment. This widely shared understanding nevertheless contradicts much
of the Supreme Court's current Fourteenth Amendment jurisprudence. If the
ratification debates in other states reflect a similar consensus, a major reassessment of that jurisprudence would seem to be required. Almost from the beginning, the Court has erred in its assessment of the original understanding. Pursuing that initial error erratically through the succeeding century, the Court
appears to have created an amendment wholly different from the one it is
obliged to interpret. If constitutional questions are never settled until they are
settled in conformity with the original understanding,
24 many Fourteenth
Amendment questions long thought settled must now be reopened.
See, e.g., Michael Curtis, No State Shall Abridge: The Fourteenth Amendment and
the Bill of Rights ( Durham, N.C.: Duke University Press, 1986); Joseph James, The
Framing of the Fourteenth Amendment ( Macon, Ga.: Mercer University Press, 1984); Jacobus Ten Broeck, Equal under Law ( New York: Collier, 1965) (originally published
in 1951 under the title The Anti-Slavery Origins of the Fourteenth Amendment); Howard J. Graham
, "The Early Anti-Slavery Backgrounds of the Fourteenth Amendment," Wisconsin Law Review ( 1950): 479, 610.
"All persons born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they reside. No State
shall make or enforce any law which shall abridge the privileges and 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." U.S. Constitution, amend. 14, sec. 1.
"Congress shall have the power to enforce this amendment by appropriate legislation." U.S. Constitution, amend. 14, sec. 5.
Slaughter-House Cases, 83 U.S. 36 ( 1872).
The importance of state ratification debates has been acknowledged in other circumstances. The clearest instance, of course, is the ratification of the original Constitution.
The Federalist Papers, the most frequently consulted source on the original understanding of the Constitution, is a collection of letters to newspapers, designed to influence the
ratification vote in New York. Indeed, the views which the federalists and anti-federalists
articulated during the ratification debates in the states are considered so illuminating that
they have now been collected for ready reference. Alexander Hamilton, James Madison,
and John Jay, The Federalist Papers (Introduction, Table of Contents, and Index of Ideas
by Clinton Rositer) ( New York: New American Library, 1961). Morton Borden, The
Antifederalist Papers ( East Lansing: Michigan State University Press, 1965). During oral