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Michael Dorf on Originalists and Fourteenth Amendment Rights [Updated]
Michael Ramsey

At Verdict, Michael Dorf: A Question by Justice Thomas During the Second Amendment Argument Inadvertently Exposes a Weakness of his Originalist Philosophy.  From the introduction: 

Last week the Supreme Court heard oral argument in New York State Rifle & Pistol Ass’n (NYSR&P) v. Bruen, the most important gun rights case to come before the Justices in over a decade. ... Given that most of the Court’s conservative majority at least sometimes describe their job as applying the Constitution’s original public meaning, history played a substantial role in the NYSR&P briefing and oral argument. However, as a question posed by Justice Clarence Thomas early in the argument illustrates, not only do scholars and advocates on opposite sides of the case read the relevant history differently; there is profound uncertainty over what history counts.


Justice Thomas asked: “should we look at the founding, or should we look at the time of the adoption of the Fourteenth Amendment, which then, of course, applies it to the states?”

And from later on:

Thomas’s question about the potential divergence between 1791 and 1868 is already salient. His McDonald  concurrence provides one answer. There, Justice Thomas expressly stated that in determining the scope of a right incorporated by the Fourteenth Amendment, the Court should look to the public understanding of the words in question—for him “privileges or immunities”—at the time of ratification, 1868. His lengthy McDonald concurrence delves deeply (albeit controversially) into evidence of how Reconstruction-era politicians and their contemporaries thought about that language.

Much of the historical material Justice Thomas discussed in McDonald concerned nineteenth-century views about arms-bearing generally, rather than views specific to the words “privileges or immunities.” Thus, it should be relevant to his colleagues, who think that the Due Process Clause continues to do the work of incorporation. And indeed it was. Justice Samuel Alito’s majority opinion in McDonald covered much of the same historical ground as Justice Thomas covered.


Yet there is considerable tension between, on the one hand, the historical approach favored by the Court’s conservative majority in McDonald and (seemingly) NYSR&P, and on the other hand, the Court’s general approach to incorporation of the Bill of Rights.

Most of the cases incorporating provisions of the Bill of Rights against the states arose during the 1960s. During that era, the Justices debated whether the Fourteenth Amendment incorporates Bill of Rights provisions against the states in exactly the way they apply to the federal government—a position sometimes called “jot-for-jot” incorporation—or whether in some instances the incorporated right might have different implications for the states.

We have already encountered one reason why a right might be different as applied to the federal government and the states: perhaps by the time the People ratified the Fourteenth Amendment in 1868, their understanding of the right had changed from the views that prevailed when the original Bill of Rights was ratified in 1791. Federalism provides another explanation: within broad bounds, each of the fifty states might be permitted some leeway in light of distinctive traditions and variations in their legal systems.

Despite the appeal of history and federalism, the Court eventually settled on jot-for-jot incorporation. Indeed, just last year, in Ramos v. Louisiana, Justice Neil Gorsuch, writing for the majority, decisively “rejected the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights” (citations and internal quotation marks omitted). In Ramos, the Court held that the Fourteenth Amendment’s incorporation of the Sixth Amendment’s right to jury trial in criminal cases precludes conviction based on a non-unanimous jury decision in state court, just as in federal court.

I agree this is a serious issue that many originalist judges (and originalist scholars) haven't adequately grappled with.  (I noted Justice Scalia's ambivalent views and lack of attention to the issue here, Part II.B).  I don't have a firm view, but I'm not a Fourteenth Amendment scholar. Professor Dorf goes on to say lack of attention to this issue undermines the originalist project (which seems somewhat unfair to Justice Thomas, since the essay starts off by showing how the Justice is interested in it).  I wouldn't go that far, but it seems that the Court needs to do more than it's done so far.

Originalist scholars have noted the potential divergence between the content of rights secured directly by the Bill of Rights and rights incorporated against the states by the Fourteenth Amendment -- for example, Michael Rappaport, Originalism and Regulatory Takings: Why the Fifth Amendment May Not Protect Against Regulatory Takings, But the Fourteenth Amendment May.  I don't think there is a consensus among originalist scholars as to how it should work.

UPDATE:  Also this important paper: Kurt Lash, Re-Speaking the Bill of Rights: A New Doctrine of Incorporation.  Here is the abstract from SSRN:

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. For example, do we have two Bills of Rights, one applicable against the federal government with one meaning, and a second applicable against the state governments with a different meaning? If historical understanding is to guide the interpretation of the incorporated Bill of Rights, is that understanding rooted in 1791, the year the people ratified the original Bill of Rights? Or is it rooted in 1868, when a new people added the Fourteenth Amendment to the Constitution? Do 1791 understandings carry forward into the 1868 amendment? Or do 1868 understandings of the Bill of Rights carry backward into the 1791 amendments by way of the doctrine of “reverse incorporation?”

This essay proposes a new theory of incorporation (and reverse incorporation) that resolves these difficulties, one based on the text and historical understanding of the Fourteenth Amendment. When the people of 1868 ratified the opening sentence of the Fourteenth Amendment, their sovereign voice brought into constitutional existence “citizens of the United States” who, by definition, enjoyed certain “privileges or immunities.” The second sentence makes these privileges and immunities of national citizenship applicable against the states. If the people of 1868 understood the term “privileges or immunities” to include the rights enumerated in the 1791 amendments, then the two opening sentences of Section One of the Fourteenth Amendment effectively “re-speak” the Bill of Rights as 1868 privileges and immunities. Re-spoken by a new people in a new context, these 1791 words communicated a new understanding of the Bill of Rights — that held by the people of 1868 and which equally binds both federal and state governments.