Wednesday, March 20, 2019


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.


Joe said...

"there are virtually no cases of courts finding equal protection violations by the federal government"

There are a few major ones but the wider point did come to mind when reading your column.

And, even in respect to affirmative action, at least during the Burger Court, more discretion was given to the federal government. The same applies to treatment of immigration, which has equal protection implications.

The "stronger protection against states" approach would be a bit ironic since traditionally it was the other way around, especially since the federal courts were seen as having special power to oversee the federal government. So, e.g., there was more concern about criminal trials in the federal courts.

Joe said...
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Shag from Brookline said...

Putting aside the "doctrine of 'reverse incorporation,'" under original public meaning originalism, the evolving public meanings from those of 1791 ratification of the Bill of Rights to the 1868 ratification of the 14th A as to incorporated provisions of the Bill of Rights could result in different original public meanings for federal and state purposes. Is "Super-Incorporation" in a sense original public meaning originalism?

Joe said...

One of the articles linked in Dorf's piece argues that there is a strong originalist case for substantive due process as applied to the 14th Amendment clause but not to the 5th Amendment clause. The article ends with a discussion of what this would mean in application.

Another (shorter) article on how interpretation based on established precedent (some form of common law constitutionalism, I assume) is more "conservative" than originalism was also good:

Kavanaugh in at least one oral argument said that respect for precedent was part of original understanding, suggesting how these things can bend back on themselves.

Shag from Brookline said...

Kavanaugh's original understanding with respect for precedent may not square with original public meaning originalism or textualism. Original understanding is as subjective as original intent. Collective understanding of Framers ? Of Ratifiers? And limited to precedent at the time of ratification? Or precedent occurring over time after ratification? Does Article III reference respect for precedent?

Joe said...

Any reference would appear to be an inference of what the "judicial power" entails.

Federalist 78 assumed that certain certain rules of interpretation, "by nature and reason," would be follow by the courts. In part: "To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them."

But, he was one voice, if of a musical bent, and strictness often has some flexibility.

Shag from Brookline said...

Per Federalist 78's:

" ... strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them."

this would be part of the "judicial power"? Would that be an evolving, subject to change,"judicial power"? Is that how it has worked out, subject to the challenges of various forms of originalism that surfaced beginning in the 1970s (original intent, original understanding, original public meaning, etc)? By the way, originalists often are flexible.