See, for example, infra note ___ .
William Nelson observes: “Nearly all the scholarship dealing with the adoption of the amendment which is addressedto lawyers is based on a single set of source materials: the debates of Congress . . .” William Nelson, The FourteenthAmendment 5 (Cambridge, Harvard Univ. Press, 1988). Nonetheless, he believes that it “is even more important to ask newquestions than to examine more sources.” Id, 6.The literature on incorporation is extensive. For some of the scholarship finding incorporation in the debates, see:Kurt T. Lash, “The Second Adoption of the Free Exercise Clause: Religious Exemptions Under the Fourteenth Amendment,”88 N.W. L. Rev., 1106 (1994); Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 163-80 (1998); Akhil R.Amar, “The Bill of Rights and the Fourteenth Amendment,” 103 Yale L.J. 57, 73 (1993); Robert J. Kaczorowski,“Revolutionary Constitutionalism in the Era of the Civil War and Reconstruction,” 61 N.Y.U. L. Rev. 863, 910, 913 (1986);Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights __ (Duke University Press,1986); J.H. Kettner, The Development of American Citizenship, 1608-1870, at 258 (1978).For some of the contrary scholarship, see Charles Fairman, “Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding,” 2 Stan. L. Rev. 5 (1949); Raoul Berger, The Fourteenth Amendment and the Bill of Rights (Norman: Univ. of Oklahoma Press, 1989); Earl M. Maltz, “Fourteenth Amendment Concepts in the Antebellum Era,”32 Am. J. L. Hist. 305, 337 (1988).
See, for example, Fairman,“Does the Fourteenth Amendment Incorporate the Bill of Rights? The OriginalUnderstanding,” supra note ___, at 5.
But only one combination of context, text, and meaning led directly to theFourteenth Amendment, thereby revealing an historical genealogy that leaves the meaning of the Privileges or Immunities Clause unmistakable. Although this history has been largelyforgotten, it was once a central element in the struggle against slavery and a foundation of theFourteenth Amendment. And it had nothing to do with incorporation.
A. The Missing Evidence.
--The incorporation thesis has seemed plausible becausescholars have tended to focus either on too narrow slice of evidence, which excludes what isessential, or on too broad a range of evidence, which conflates different contexts. In fact,although the relevant evidence comes from a wide array of sources, it arose in a specific context,in which “the privileges and immunities of citizens of the United States” had a very specificmeaning.Many scholars consider only a very narrow slice of evidence: the text of the Amendmentand the debates about it in 1866 and 1868. On the assumption that the drafting andratification debates are what matter, these scholars have sifted through the speeches of Congressmen and others, searching for passages that might, perhaps, have alluded toincorporation.
Even most of the scholars who have questioned incorporation (such as CharlesFairman) have worked from the same evidence, picking through the debates for hints of whatthe drafters or ratifiers might have thought.
When those earlier Americans, however, defendedthe Privileges or Immunities Clause, they felt little need to explain a phrase that was widelyunderstood. The result among the scholars who narrowly rely on the debates from the 1860shas been confusion. Some reach contradictory conclusions about incorporation, and many