236 ANALYZING DATA
Legal Orthodoxy and the History of the Fourteenth AmendmentThe first application of these interpretive methods involves the debate with which this chapter
began. This debate was between Charles Fairman and William Crosskey over whether the Four-
teenth Amendment originally applied the Bill of Rights to the states. For both Fairman and Crosskey,
the process of making the documentary evidence meaningful was ordered, though by different
mechanisms. Space constraints prevent me from detailing the content of Fairman’s and Crosskey’s
frames and the way their frames structured their interpretation of the documentary evidence.^22 It
will have to be enough to note that their frameworks structured their sense of relevant evidence.
Their frameworks shaped where they looked for evidence of framers’ intent, when in history they
began looking,^23 and how they knew when they had found it. In short, the play of symbolic struc-
tures that made up each of their frames organized different definitions of appropriate investigative
techniques and faithful readings of the evidence.
How do we know that Fairman’s account was dubious? By applying the methods of historians of
political discourse. Pocock and Skinner focus attention on the use of language in institutional set-
tings, and by language, they do not mean ideologies or arguments. Rather, languages are vocabular-
ies and concepts that develop over time, shaped by institutional actors. Pocock and Skinner focus on
what historical actors do with language, in order to arrive at the historical meaning of texts.^24
In the present case, Fairman, writing in the mid-twentieth century, did not understand the
nineteenth-century vocabulary of the Republican framers of the Fourteenth Amendment. Among
other things, he judged Republican references to the Civil War as an “inapt way” to express intent
to incorporate the Bill of Rights (Brandwein 1996, 307–9). Although such references may have
been inapt in 1949, they were not in 1866. Indeed, we can understand the historical meaning of
these Civil War references by studying the way Republicans used them in conjunction with criti-
cism of Southern suppression of civil liberties and criticism of Barron v. Baltimore (1833), the
Court decision ruling that states need not guarantee the civil liberties listed in the Bill of Rights.
Debate over the Southern suppression of civil liberties was a central element of slavery politics,
and Fairman’s account was weaker due to anachronisms that led him to “miss” references to this
civil liberties debate.
Despite Fairman’s historical errors, various institutional arrangements and forces worked to
privilege his account. Situated institutional players made up the audience for the Fairman/Crosskey
dispute, and these actors brought a range of institutional pressures to bear. Most significantly,
Fairman belonged to a Harvard-based interpretive community, which carried enormous prestige
at the time. This interpretive community was the institutional sponsor of Fairman’s frame. This
Harvard network included Justice Felix Frankfurter, who condemned an earlier presentation of
the incorporation thesis by Justice Hugo Black in Adamson v. California.^25 Frankfurter was men-
tor to Henry Hart, who also had ties to Harvard. Hart (1954) was the author of an influential
negative review of Crosskey’s 1953 book, Politics and the Constitution, which damaged Crosskey’s
reputation as a legal historian. Other reviews of this book (Brant 1954; Goebel 1954) were also
damaging. Indeed, it is highly likely that institutional audiences were predisposed to think nega-
tively of Crosskey’s work. Still, even if Crosskey’s reputation had emerged intact from these
book reviews, it is unlikely that he would have won his debate with Fairman. Justice Black was
also attacked for his incorporation thesis in Adamson, and he was not burdened by reputation
problems as Crosskey was.
In explaining Fairman’s initial success, we can see how definitions of “good” research are
constituted by complex interactions among cognitive factors, personal networks, institutional
pressures, and citation patterns. Crosskey’s account, by arguing that the Court had been wrong