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Jay Bybee: The Congruent Constitution [Updated]
Michael Ramsey

Jay Bybee (U.S. Court of Appeals for the Ninth Circuit) has posted The Congruent Constitution (Part One): Incorporation (Brigham Young University Law Review, Vol. 48, No. 1, 2022) (69 pages) and The Congruent Constitution (Part Two): Reverse Incorporation (Brigham Young University Law Review, Vol. 48, No. 2, 2022) (100 pages) on SSRN.

Here is the abstract for Part 1:

In Barron v. Mayor of Baltimore (1833), the Supreme Court held that the Bill of Rights applied to the federal government alone. Following the adoption of the Fourteenth Amendment in 1868, the Supreme Court reconsidered the rule of Barron. The Court first reaffirmed the rule of Barron and held that neither the Privileges or Immunities Clause nor the Due Process Clause made the Bill of Rights applicable to the states. It then entered a period of “absorption,” where the Court held that the Due Process Clause guaranteed some minimal rights found in the Bill of Rights, but not necessarily the same rights. Ultimately, the Court announced a congruence principle: incorporated rights would be identical to textual rights, jot-for-jot. The congruence principle came with a limitation, however: only select provisions of the Bill of Rights would apply to the states. Nevertheless, selective incorporation is ongoing, as the Court has declared three provisions of the Bill of Rights incorporated in the last decade, and there are other provisions in the Bill of Rights and elsewhere in the Constitution that the Court may yet declared incorporated.

Incorporation may be the most consequential development in the Constitution’s history. But the Court’s record on incorporation is not a flattering one. This Article reviews the troubled history of incorporation and considers the arguments for incorporating the remainder of the Bill of Rights and provisions of the Constitution beyond the Bill of Rights. The Article concludes with three points. First, the Court’s current theory based on the Due Process Clause is textually incoherent. Selective incorporation is descriptive of what the Court has done, but it is not a theory of interpretation. There are better theories available, but so far, the Court has resisted any additional changes in its approach. Second, in adopting the congruence principle, the Court has over-enforced some constitutional provisions and under-enforced others. The Court’s congruence principle skews the choice of the substantive rule because it forces the Court to find a single rule applicable to all levels of government. Indeed, the Court’s congruence principle may have deterred it from completing the incorporation of the Bill of Rights. Third, the Article concludes that the congruence principle may be convenient for the Court, but congruence cannot justify the Court’s choices. Incorporation has vastly expanded the Court’s authority to regulate the states, without the sanction of legislation or amendment under Article V. Incorporation has also constrained Congress’s power under Section 5 of the Fourteenth Amendment. Through incorporation the Court has altered both our federalism and our separation of powers.

And here is the abstract for Part 2:

In Bolling v. Sharpe (1954), a companion case to Brown v. Board of Education, the Supreme Court thought it “unthinkable” that the Equal Protection Clause would 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, most of which has not been told before. The 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 a 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.

UPDATE:  At Legal Theory Blog, Larry Solum says: "Highly recommended.  Download them while they are hot!"

FURTHER UPDATE:  Also "Download[s] of the Week."