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07/24/2021

Judge Jay Bybee: Reverse Incorporation
Michael Ramsey

Jay Bybee (U.S. Court of Appeals for the Ninth Circuit) has posted Reverse Incorporation (111 pages) on SSRN.  Here is the abstract: 

In Bolling v. Sharpe (1954), a companion case to Brown v. Board of Education, the Supreme Court declared that it was “unthinkable” that the Equal Protection Clause did not apply to the federal government as well as the states and declared it “reverse incorporated” through the Due Process Clause of the Fifth Amendment. The Equal Protection Clause is the most familiar example of reverse incorporation, but it is neither the first nor the only provision of the Constitution that, by its terms, applies to the states alone, but which the Supreme Court has made applicable to the federal government through the Due Process Clause.

The Court has, from an early period and throughout its history, systematically ignored the Constitution’s signals dictating to which level of government a provision applies. Aside from the Equal Protection Clause, the most important of these reverse incorporated provisions is the Contracts Clause—which was among the most litigated clauses of the Nineteenth Century—but there are other clauses that have been effectively reverse incorporated against the federal government as well. What has resulted is a congruent Constitution, a series of good government provisions that the Court has treated as universals rather than binding only the government identified in the Constitution. The Court has made little effort to justify its reverse incorporation decisions through anything more than the amorphous principle of “due process.” One consequence is that reverse incorporated provisions are substantively congruent, but textually discordant. This Article reviews the history of reverse incorporation, much of which has not been told before. This Article argues that there is nothing “unthinkable” about the Constitution requiring different things of the states and the federal government, and that in the process of creating the congruent constitution the Court has overenforced some provisions against the federal government and underenforced others against the states. Indeed, the Court’s congruence principle skews the choice of the substantive rule because it forces the Court to find a single rule applicable to both levels of government. The choice of a unitary rule may affect matters as diverse as mortgage relief in times of emergency and reparations for slavery. In the end, congruence is convenient for the Court, but it has blurred our federalism and altered our separation of powers. The latter point is critical: Through reverse incorporation, the Court has vastly expanded its own authority over Congress and the Executive, without the sanction of legislation or constitutional amendment under Article V.