The Curious Case of Reverse Incorporation
I have previously noted that that constitution contains two due process clauses, one in the Fifth Amendment applicable to the federal government, and another in the Fourteenth Amendment applicable to the states. The Fourteenth Amendment also contains an Equal Protection Clause, which guarantees against the states equal protection of law.
But try as you might, you won’t find a reciprocal equal protection clause applicable against the feds. Does that mean that the national government may, consistent with our constitution, discriminate against persons on the basis of race, sex, or any other arbitrary and invidious distinction?
In Bolling v. Sharpe, a decision ordering school desegregation in the District of Columbia which was issued on the same day as Brown v. Board, the Supreme Court concluded that such an outcome would be “unthinkable.” The court reasoned that Fifth Amendment due process also includes equal protection applicable to the federal government that is precisely that same as Fourteenth Amendment equal protection.
The application of equal protection to the federal government through Fifth Amendment due process has been dubbed “reverse incorporation,” to mirror the process by which the federal bill of rights was “incorporated” against the states by Fourteenth Amendment due process.
I have previously griped more than once about how the court hijacked the concept of due process by injecting it with a preposterous substantive component. Due process is procedural; it requires that the government provide the process that is due. Substantive rights on the other hand are granted through other provisions like the Privileges and Immunities Clause.
Apparently not satisfied with the blatant paradox of substantive due process, the court has gone on to warp due process beyond all recognition by cramming equal protection into the already overstuffed doctrine through reverse incorporation. At this point, this foie gras provision is not just unrecognizable, it’s a complete cypher capable of being deployed at will to obtain any conclusion the court prefers.
I’m in good company in thinking that reverse incorporation is rank nonsense. None other than John Hart Ely called it “gibberish.” Meanwhile, our (least?) favorite originalist gadfly, Justice Thomas, argued in a 2022 concurrence1 that the “text and history of the Fifth Amendment's Due Process Clause provide limited support for reading into that provision an equal protection guarantee.”
And Justice Thomas has a point. It’s actively redonkulous to suppose that the 1790s era Fifth Amendment was intended to incorporate an unmentioned principle of racial equality, as an original matter. Conversely, it doesn’t make a ton of sense to separately specify in the Fourteenth Amendment that equal protection is a thing if it’s entirely encapsulated by the already enumerated Due Process Clause.
We may find the court’s abuse of due process felicitous as a policy matter in particular cases, such as when a recalcitrant clerk is required to issue a marriage certificate to a gay couple. And one may think that congruence between states and feds on constitutional rights is similarly good policy.
But when the court abandons the constitution’s text to invent new doctrines out of whole cloth to satisfy its policy druthers, it sets itself above not only every other public and private institution in this country, but the constitution itself. The abuse of due process is a case of judicial imperialism.
And when the shoe is on the other foot, judicial law making reveals its Janus face. The court may, for example, shadow ban the entire administrative state by deciding that OSHA’s Covid vaccine requirement is a “major question,” a totally made up problem you will not find anywhere in the law.
At the end of the day, nothing constrains these unelected, life-appointed justices expect the text of the constitution itself. When they jettison textual constraints, we’re at their mercy, for better or worse.