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Michael Dorf on Incorporation and Originalism
Michael Ramsey

At Dorf on Law, Michael Dorf has this interesting post, inspired by the Court's recent decision in New York State Rifle and Pistol Ass'n v. Bruen: 1791 or 1868? The Question Itself Reveals a Contradiction Between Originalism and Jot-for-Jot Incorporation.  From the introduction:

.. Today I want to explore a problem that both the majority opinion and Justice Barrett's Bruen concurrence acknowledged but did not address: how to choose between the 1791 and the 1868 understanding of a provision of the Bill of Rights, if they differ?

Let's start with some background. The Court's cases say that the Fourteenth Amendment incorporates most of the provisions of the Bill of Rights against the states. Ramos v. Louisiana (2020) definitively resolved what had been a (just barely) open question: whether, when the Fourteenth Amendment does incorporate a rights provision, it has the exact same content against the states as it does against the federal government--a position that was once called "jot-for-jot" incorporation? The Court in Ramos says yes, it does, rejecting the possibility that a "watered-down" version of a rights provision could apply to the states.

Is Ramos reconcilable with originalism? Suppose that in 1791, the First Amendment's protection for "freedom of speech [and] of the press" was not understood to forbid injunctions against defamatory statements but that by 1868 those terms were so understood. (This reading of the history is at least plausible.) The most straightforward application of originalism would then say that the Fourteenth Amendment provides greater protection for free speech when infringed by state or local government than the First Amendment provides for it when infringed by the federal government. The Bill of Rights, in this instance, would provide a "watered-down" version of what the Fourteenth Amendment provides. Conversely, where understandings of rights narrowed between 1791 and 1868, the opposite would be true.

The majority and concurrence in Bruen say they don't need to resolve the issue because the challenged New York law violates the Second Amendment as understood in 1791 and the Fourteenth Amendment's incorporation of the Second Amendment as understood in 1868. But presumably honest historians will find divergences in some future cases. How should such divergences be handled?

This is a crucial methodological question which originalists have often avoided (see my criticism here of Justice Scalia's failure to engage with the issue).  And as Professor Dorf says, there's no obvious answer: 

The most straightforward answer, in my view, would be to acknowledge that Ramos was wrong--not necessarily in its result but in its categorical endorsement of jot-for-jot incorporation. Originalism would seem to locate the meaning of the Bill of Rights in 1791 understandings and the meaning of the Fourteenth Amendment in 1868 understandings. Thus, as I argued in a 2019 Verdict column, the logic of originalism would seem to reject jot-for-jot incorporation. I obviously didn't persuade the Court's self-styled originalists, however, because they decided Ramos as they did the next year.

That leaves us with two possibilities. One view would standardize rights circa 1791. The best argument for this position would go like this: When the People adopted the Fourteenth Amendment in 1868, they incorporated by reference most of the provisions of the Bill of Rights, but what they incorporated was what those provisions originally meant--because that is all that they could mean--notwithstanding any contrary views the 1868 People may have mistakenly held about the meaning of the Bill of Rights.

That argument reconciles Ramos with a version of originalism, but it's a peculiar one. It says that the 1868 meaning of the Fourteenth Amendment is incorporation of the Bill of Rights, but recall that a few provisions of the Bill of Rights (most notably the grand jury and the civil jury) are not incorporated. Why not? Presumably because they don't satisfy the test for incorporation. That test, however, gives substantial weight to the understanding circa 1868. For example, Part III.B.1 of the Court's opinion in McDonald v. Chicago extends for nearly ten pages to show that the framers and ratifiers of the Fourteenth Amendment would have understood it to incorporate an individual right to keep and bear arms. But if the Court looks to the 1868 understanding to decide whether a particular right is incorporated or not--a process that involves examining the content of that right as understood in 1868--it's hard to see why the Court should then say, having found that a right is incorporated, that the 1868 understanding is irrelevant if it conflicts with the 1791 understanding.

Thus, jot-for-jot selective incorporation of the 1791 understanding of the incorporated rights is difficult to square with a coherent theory of originalism or the actual practice of the Court in incorporation cases. 

How about jot-for-jot selective incorporation but of the 1868 understanding? In a recent Indiana Law Journal essay that Justice Thomas cites in Bruen, Kurt Lash argues for that approach. That's easy enough to justify for the incorporated rights as limits on the states, but Lash says that the provisions of the Bill of Rights as limits on the federal government also should be interpreted in light of their 1868 rather than their 1791 understanding. Why? Because when the People ratified the Fourteenth Amendment they "re-spoke" the Bill of Rights and thereby invested it with the 1868 understandings.

Is that persuasive? Maybe, but it also creates some difficulties ...

I also have my doubts about jot-for-jot incorporation.  It seems that 1791 rights should be given a 1791 meaning and 1868 rights should be given an 1868 meaning. On the other hand, I'm not as sure as Professor Dorf that the 1791-meaning-only position is necessarily inconsistent with originalism, especially if one thinks the 14th Amendment incorporated all of the Bill of Rights rights.  Perhaps the 1868 enactment means the Bill of Rights, given its original meaning, whatever that was, is incorporated against the states.  If one thinks of the privileges or immunities clause as saying, you now have the same rights against the states as you previously did against the federal government (which seems a plausible reading), then it would (or could) follow that the 1868 rights are the 1791 rights.  I don't see a "contradiction."