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.
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Rehabilitating Reverse Incorporation
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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.