The incorporation of the Bill of Rights against the states by way of the Fourteenth Amendment raises a host of textual, historical, and doctrinal difficulties. This is true even if (especially if) we accept the Fourteenth Amendment as having made the original Bill of Rights binding against the states. Does this mean we have two Bills of Rights, one applicable against the federal government with a “1791” meaning and a second applicable against the state governments with an “1868” meaning? Do 1791 understandings carry forward into the 1868 amendment? Or do 1868 understandings of the Bill of Rights carry backward into the 1791 amendments through the doctrine of “reverse incorporation”?
This essay proposes a new way to solve these conundrums and reconcile the original Bill of Rights with the incorporated Bill of Rights and do so in a manner consistent with a historically based understanding of the Fourteenth Amendment. When the people adopted the Fourteenth Amendment into existence, they readopted the original Bill of Rights, and did so in a manner that invested those original 1791 texts with new 1868 meanings. There is only one Bill of Rights—the one the people spoke into existence in 1791 but then respoke in 1868. This respoken Bill of Rights is now one of the privileges or immunities of citizens of the United States which neither state nor federal government may abridge.
Kurt T. Lash, Re-Speaking the Bill of Rights: A New Theory of Incorporation, 97 Indiana Law Journal 1439 (2022).