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Original Popular Understanding Of The 14th Amendment As Reflected In The Print Media Of 1866-1868, David T. Hardy

David T. Hardy

The controversy between 14th Amendment total incorporation under the privileges or immunities clause, and selective incorporation under its due process clause, has remained quiescent in recent years. Now, two cases pending in the lower Federal courts are making bids to revive the controversy that once generated a feud between Justice Black and Justice Frankfurter. Both the 7th and the 9th Circuits have ordered expedited review of these appeals; one is being argued in January, the other in April.

In the last Term, a majority of the Supreme Court accepted a variant of original public meaning as the key to ascertaining …