Rehabilitating Reverse Incorporation
Last time, I described how the blob of due process absorbed and is slowly digesting equal protection through the doctrine of reverse incorporation. The reverse incorporation of equal protection against the federal government through Fifth Amendment due process can’t be justified in terms of the text, history, or structure of the constitution. And I complained that raw policy-making through judicially invented doctrines unmoored from constitutional text turns the unelected Supreme Court into a super-legislature.
But if reverse incorporation isn’t really a thing, that means that the federal government may apparently discriminate without offending the constitution. As Judge Bybee has argued, such a conclusion might be consistent with the Fourteenth Amendment’s original understanding. In the aftermath of the Civil War, it was states, and not the feds, that couldn’t be trusted not to discriminate.
Indeed, the federal government needed power to take affirmative steps to remedy the effects of slavery, which they did through the Freedmen’s Bureau Acts and Civil Rights Acts. If the feds had been bound by a rule of strict color blindness, they would have arguably been prohibited from using race conscious measures to lift up freed persons.
On the other hand, it has been proposed that the Fourteenth Amendment’s Citizenship Clause supplies the basis for applying equal protection against the federal government. As I have previously discussed, the Citizenship Clause overturned Dred Scott’s holding that black people were not and could not be citizens, by providing that
[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
The original constitution did not define citizenship and prior to the Fourteenth Amendment, citizenship was conferred by states, which could, and did, heavily restrict it.
The argument for incorporating non-discrimination against the federal government through the Citizenship Clause is based on the proposition that equal treatment is inherent in the status of citizenship. If the government could discriminate between different classes of citizens, it would establish a de facto nobility, which is expressly prohibited by Art. I, Sec. 2. Thus, by constitutionalizing national citizenship, the Fourteenth Amendment bound the federal government to treat citizens equally.1
And Professor Lash would take it even further by “re-speaking” substantive rights, including the bill of rights, against the federal government via privileges and immunities. As we have seen, the Fourteenth Amendment’s Privileges and Immunities Clause prohibits states from abridging the privileges and immunities of the citizens of the United States. The clause is generally understood to have incorporated the bill of rights (and unenumerated rights) against the states.
But if privileges and immunities are a feature of national citizenship, then naturally the federal government must respect them as well. Under this approach, the bill of rights, as it was understood in the 1860s, was reverse incorporated as privileges and immunities which superseded the original meaning of the first eight constitutional amendments.
Understanding reverse incorporation in this way, Professor Lash argues, would allow us to update our understanding of certain substantive rights without offending originalism. The First Amendment’s Free Speech Clause, for example, may have originally been understood only to prohibit prior restraints, which would leave the government free to punish you for your speech after the fact.
Similarly, the original purpose of the Establishment Clause was likely not to erect a strict wall of separation between church and state. Rather, it was probably intended merely to prohibit the federal government from interfering with the states’ established religions. By the 1860s, the public understanding of these provisions had changed.2 I made a similar argument with regard to the Second Amendment and the relevance of the militia clause.
So perhaps I judged reverse incorporation too rashly. Divorced from due process and viewed through the lens of citizenship, the doctrine takes on interpretive bite and originalist cred. We are no longer shackled to a crimped founding era formulation of fundamental rights. Maybe privileges and immunities can light the way to a capacious and forward looking conception of constitutional liberties.
A not insignificant wrinkle is that if equal protection is reverse incorporated through citizenship and not due process, it leaves non-citizens vulnerable to discrimination by the federal government.