Wednesday, March 20, 2019

Super-Incorporation

by Michael C. Dorf

In my latest Verdict column, I take note (as have numerous others) of the recent calls by Justice Clarence Thomas for the re-examination of long-settled constitutional doctrines. Thomas objects that the Court's modern case law did not ground these doctrines in the Constitution's original meaning. He then points to substantial evidence that the doctrines--in particular the rules of NY Times v. Sullivan and Gideon v. Wainwright--contradict the original meaning of the First and Sixth Amendments respectively.

My column raises a number of familiar criticisms of originalism, including some that overlap with the argument Prof. Segall recently laid out here on the blog earlier this week. The column then pivots to focus on a temporal problem: The cases at issue arise out of state laws and are thus governed not by the First and Sixth Amendments themselves but by the Fourteenth Amendment, which makes the relevant provisions applicable against the states. Although Justice Thomas claims that unbroken practice prior to the 1960s entails that the Sullivan and Gideon rules are wrong as agains the states no less than as against the federal government, he does not take account of the possibility that in at least some circumstances the meaning of a term used in the Bill of Rights might have evolved between 1791 and 1868. I give a couple of plausible examples.

I then point out an odd implication. Prior to nearly-full incorporation of the Bill of Rights, states sometimes were governed by a looser due process standard than the standard that governed the federal government under a right enumerated in the Bill of Rights; yet, where a term evolved from less restrictive of government action to more restrictive of government action between 1791 and 1868, applying original meaning per the general approach that originalists purport to favor would lead to stricter controls on the states than on the federal government.

The column questions whether that makes sense. And certainly for someone like Justice Thomas--who believes strongly in principles of federalism--the answer is probably not. But might it make sense for someone else? Perhaps.

Consider the general logic of Federalist No. 10. Madison argues there that the danger of faction is greater in smaller polities than in larger ones. In the "extended Republic" of the United States, no single faction will be able to seize control of the apparatus of government to systematically oppress minorities.

American history has mostly proven Madison prescient on this point. Although the federal government has hardly been a consistent champion of liberty and equality, in great conflicts with the states--over slavery in the 19th century and civil rights in the 20th--the federal government has been more progressive. If the People, and especially members of disadvantaged minority groups, have more to fear from state and local government officials than from federal officials, then it may make sense to hold the former to a higher standard of review.

Meanwhile, regardless of whether there is a greater need for judicial supervision of state and local officials than federal ones, in practice there may already be that sort of difference. In a 2004 article in the Columbia Law Review, Prof. Richard Primus noted that although the doctrine of "reverse incorporation" makes the principle of equal protection applicable against the federal government (despite the fact that the Equal Protection Clause of the Fourteenth Amendment only binds states and their subdivisions, while there is no parallel provision applicable to the federal government), there are virtually no cases of courts finding equal protection violations by the federal government--except when used to invalidate affirmative action programs. One could conclude from this pattern that vigorous review of federal action is generally unlikely but pernicious when it occurs.

Accordingly, it appears that there could indeed be a sensible set of doctrines that apply rights more strictly when asserted against state and local actors than when asserted against the federal government. We might call the concept "super-incorporation" to reflect the fact that some provisions of the Bill of Rights are not only incorporated against the states but actually gain strength when so incorporated.

Strikingly, however, the sense that super-incorporation might make would have virtually nothing to do with what I am suggesting might give rise to it--the evolution in meaning of some words between 1791 and 1868. The Supreme Court's recently repeated commitment to applying rights identically against state and federal actors looks like it will not change any time soon.