1791 or 1868? The Question Itself Reveals a Contradiction Between Originalism and Jot-for-Jot Incorporation

 by Michael C. Dorf

Last month, I wrote Verdict column criticizing the history-only methodology of Justice Thomas's majority opinion in New York State Rifle & Pistol Assn., Inc. v. Bruen. Whether that methodology--which purports to eschew any sort of means/ends test--spreads to other areas of law remains to be seen. 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?

Before I answer that question, I'll venture a guess about how such divergences likely will be handled: through tendentious law-office history. That is, as in Bruen, the Court will conclude that, lo and behold, whatever differences might exist between 1791 and 1868, they're not relevant to deciding the dispute at hand. Because the history isn't really driving the analysis in the first place, it seems unlikely that the Court would acknowledge any genuine awkwardness in practice.

Too cynical? I don't think so, but just for fun, let's pretend that the Justices really mean this enterprise seriously. How should they proceed?

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:

(1) Suppose that some provision had a broader meaning in 1791 than in 1868. When the People re-spoke it, did they narrow it? That shouldn't work. Suppose that in 1791 some provision of the Bill of Rights was understood to confer the right to X and also the right to Y, but in 1868 that same provision was understood only to confer a right to X. When the People re-spoke the provision, they re-conferred the already-extant right to X, but nothing about the re-speaking repealed the earlier understanding, which also included Y. But now we no longer have jot-for-jot incorporation, because the provision is broader against the federal government than against the states.

(2) Lash or others might say that the foregoing scenario is unrealistic--that understandings of rights changed between 1791 and 1868, if at all, only by expanding. Yet how do we know that without actually digging into the history? It is at least possible that some provisions of the Bill of Rights were understood more narrowly in 1868 than in 1791.

(3) There is a gigantic body of case law construing the Bill of Rights. Much of it--including a great many decisions that self-styled originalists have endorsed--do not even pretend to be originalist. But a great many opinions at least purport to be guided in substantial part by history. And that history focuses to a much greater extent on the Founding than on Reconstruction. Must the Court now re-examine issues that were resolved against a claim of right under the Bill of Rights in reliance on evidence at the Founding by considering whether there was a broader understanding during Reconstruction?

(4) Further, there is a textual difficulty with Lash's theory. It is textually plausible to read the language of the Privileges or Immunities Clause as incorporating the Bill of Rights. Indeed, that's arguably the most natural reading of the Clause. But it's not textually plausible to read any provision of the Fourteenth Amendment as updating the Bill of Rights. The closest that Lash comes to finding a provision that does the trick is the Citizenship Clause, which, of course, says who is a citizen, but says nothing explicit about what rights come with citizenship.

If I were an originalist Justice skeptical of the "re-speaking" theory, I would ask exactly which textual provision of the Fourteenth Amendment has, as its semantic content "the provisions of the first eight amendments to the Constitution are hereby re-enacted." And of course the right answer is that none of them does. The Fourteenth Amendment repeats the phrase "privileges or immunities" from Article IV. (The Article IV version is "privileges and immunities," but the "or" instead of "and" is simply because the Fourteenth Amendment version is phrased in the negative.) But that can't be an updating of anything relevant because the Article IV version is also a limit on the states, not the federal government.

The other provision that the Fourteenth Amendment repeats from the pre-existing Constitution is the Due Process Clause. Here the re-speaking theory could do some real work, as the Due Process Clause in the Fifth Amendment does apply to the federal government. Moreover, there is pretty good evidence (canvassed in a 2010 Yale Law Journal article by Ryan Williams), that the original public meaning of "due process of law" in 1868 encompassed substantive rights, whereas it did not yet carry that meaning in 1791. Thus, the re-speaking theory could imbue the Fifth Amendment with substantive meaning.

(5) But that conclusion holds further trouble for the self-styled originalists who, like Justice Thomas (and Professor Lash for that matter), think that it's the Fourteenth Amendment's Privileges or Immunities Clause, not its Due Process Clause, that does the incorporating. Therefore, if re-speaking the Fifth Amendment Due Process Clause imbues it with new, substantive meaning, it can only be with respect to unenumerated rights. Whatever their scope, and whether recognized via re-speaking, the Ninth Amendment, or not at all, harmonizing the content of unenumerated rights against the state and federal governments is a separate matter from harmonizing the interpretation of incorporated Bill of Rights provisions.

Accordingly, and although Lash does not intend it this way, his re-speaking theory is best understood as not an originalist account at all. He disparages the conventional approach to "reverse incorporation" by which commentators rationalize applying equal protection principles to the federal government as "an ahistorical example of living constitutionalism." However, given the complete absence of anything resembling actual re-speakng (such as a repetition of the Bill of Rights with the federal government as its target), re-speaking is best understood as simply a repackaging of reverse incorporation's living constitutionalism. Thus repackaged, it's potentially attractive to non-originalists, but it does not reconcile any genuine version  of originalism--which construes each textual provision in accordance with either the subjective intentions and expectations regarding or the public meaning of a clause at the time of its enactment--with jot-for-jot incorporation.

Put differently, Justice Thomas's majority opinion and Justice Barrett's concurrence in Bruen are both mistaken: the question whether an incorporated right has the 1791 meaning or the 1868 meaning as a limit on both the federal and state governments is not a question that is left open, because neither answer can be satisfactorily defended on originalist grounds. With respect to cases in which the 1791 and 1868 understandings relevantly differ, originalism cannot be reconciled with jot-for-jot incorporation.