Bench Memos

Incorporation and Originalism

That’s an interesting article by Will Haun at NRO today.  A turn to originalism by the Supreme Court would be a welcome thing indeed.  But I was struck by Haun’s omission of the great attack on “incorporation” of the Bill of Rights (to apply to the states) by the late Raoul Berger, his Government By Judiciary, which used to be required reading for anyone devoted to originalism (and still should be).  Maybe the “consensus” view is that the incorporation debate has left Berger’s work behind–and I never found it completely flawless in every detail myself.  But it has always seemed to me that he won every round on points against Michael Kent Curtis, and would be winning still if he were still living.  It should at least be said that Berger (and Charles Fairman before him) made it extremely difficult to speak of “incorporating” the Bill of Rights–under any or every clause of the Fourteenth Amendment–with any confidence that one knows what one is talking about.  We should always beware of moving “beyond” scholarship this good.

On a tangent, I will say that I find it very unlikely that a majority of the justices of the Court will ever abandon a century’s worth of ahistorical “selective incorporation” under the due process clause, in exchange for a putatively more “originalist” incorporation under the privileges or immunities clause.  There really is a self-crippling disinclination ever to admit error on the Supreme Court, especially if it has been persisted in for a very long time.  It has happened, but rarely.  That’s just the force of precedent, for good or ill.  And the payoff for this demolition job would be, in the eyes of most of the justices, just not worth it.

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