My ongoing research on the meaning of the Bill of Rights has changed my view of something that I said in my book on William Jennings Bryan. Admitting error is an important part of blogging and scholarship, so let me explain.
One theme in the book is that incorporation suffered a setback due to the defeat of the Populist Party. Basically, the idea is that there was some support for extending parts of the first set of amendments to the states into the 1890s on the Supreme Court, but that support dried up in the wake of the civil unrest that rocked the country in those years. I then went further and said that Bryan’s defeat in 1900 on imperialism deepened this trend. Here’s what I said:
“The issue of whether the Constitution should extend to the territories (and thereby limit congressional discretion was similar to the issue of incorporation. For both, the issue was whether constitutional rights or provisions should be expanded to new political units (the states or the territories). And the Court’s rejection, in a series of cases, of jury trials and other constitutional rights in the Philippines was partly prompted by a desire to curb dissent, as were some of its decisions with respect to the Populists. In fact, after the Spanish-American War, the United States met a serious revolt in the Philippines with a harsh response that was not at all consistent with the Cruel and Unusual Punishments Clause. Both abroad and at home, the Bill of Rights was on the defensive by 1900.”
What’s wrong with this? It puts too much emphasis on constitutional law and not enough on what Congress did in extending part of the Bill of Rights to the Philippines in 1902. That was an important boost to the Bill of Rights–far more important than anything since Bingham’s advocacy for incorporation during the Thirty-Ninth Congress.