Law Commons^™

Reversing Incorporation, Ilan Wurman

Notre Dame Law Review

It is originalist gospel that the Fourteenth Amendment’s Privileges or Immunities Clause was intended, at a minimum, to incorporate the Bill of Rights against the states. This Article revisits forty years of scholarship and concludes that this modern consensus is likely mistaken. Reconstructing antebellum discourse on fundamental rights reveals that the historical players assumed that every state must, as all free governments had to, guarantee and secure natural rights to their citizens. But that did not mean the states regulated these rights in the same way, nor did that dictate what the federal government’s role would be in guaranteeing and …

The Bill Of Rights As A Term Of Art, Gerard N. Magliocca

Notre Dame Law Review

This Article argues that the use of the “Bill of Rights” to describe the first

set of constitutional amendments emerged long after the Founding as a justification

for expanding federal power at home and abroad. In making that

claim, I challenge two common misconceptions about the Bill of Rights. One

is that the first set of amendments was known by that name from the start.

This is not true. James Madison never said that what was ratified in 1791 was

a bill of rights, and that label was not widely used for those provisions until

after 1900. The second fallacy …

The Bill Of Rights And Originalism, Gerard V. Bradley

Journal Articles

Professor Bradley begins the final installment of the University of Illinois Law Review's year-long tribute to the Bill of Rights by proposing that the first ten Amendments, like the Constitution itself, be interpreted according to the original understanding of their ratifiers. Professor Bradley, though, narrows the scope of the exegetical inquiry to what he proposes is the only sound originalism - plain meaning, historically recovered. Professor Bradley argues that interpreting the Bill of Rights according to the text's plain meaning among persons politically active at the time of drafting avoids both the inflexibility and philosophical deficiencies of "snapshot" conservative originalism …