Professor Solumn just posted to SSRN an article titled Incorporation and Originalist Theory. This article makes several of the same points Ilya and I make in Pandora’s Box about the Privileges or Immunities Clause as a term of art, and considering what exactly “incorporation” is from an originalist perspective. Here is the abstract:
Does the Fourteenth Amendment of the United States Constitution incorporate the Bill of Rights contained in the first eight amendments? And how should an originalist answer that question? This paper focuses on the latter question-the issues of originalist theory that are raised by judicial and scholarly debates over what is called “incorporation.”
The inquiry proceeds in six parts. Part I answers the questions: “What is incorporation?” and “What is originalism?” Part II examines the theoretical framework for an investigation of incorporation that operates within the narrow confines of interpretation of the linguistic meaning text based on the assumption that the original meaning of the text is solely determined by the public meaning for ordinary citizens at the time of framing and ratification. Part III relaxes the assumption that “original meaning” is determined solely by the linguistic practices of the whole community and considers the possibility that the phrase “privileges or immunities” was a term of art with a technical meaning for those learned in the law. Part IV relaxes the assumption that the incorporation debate must be resolved solely by interpretation of linguistic meaning and considers the possibility that incorporation doctrine might be viewed as a construction of an under determinate constitutional text. Part V considers the implications of the possibility that the “privileges or immunities clause” instantiates what might be called a failure of constitutional communication, considering the possibility of a saving or mending construction of the clause. Part VI concludes.
One point that Solum makes is spot-on.
Articulating the implications of originalist theory for incorporation requires an understanding of “incorporation.” There is a widely shared “rough and ready” understanding of incorporation—a provision of the Bill of Rights is “incorporated” if that provision is applied to the states; mutatis mutandus, such provisions are “not incorporated” if they are not applied to the states. But this rough and ready understanding is imprecise for at least two reasons. First, incorporation does not necessarily involve
the application of the semantic content of the first eight amendments to the Constitution to the states. For example, the First Amendment begins “Congress shall make no law . . . ,” but the incorporation debates are not about the powers of Congress—they are about the application to the states of the substance of “establishment,” “free exercise,” “freedom of speech,” and so forth.27
We made a slight variation of this point, with the slight twist of considering the meaning of the core of the right in 1868, as applied to the states. The meaning is not limited to the textual, or as Professor Solum puts it, the semantic meaning of the clause.
In many respects, locating the right in the Privileges or Immunities Clause is a more compelling approach than incorporation through the Due Process Clause. By thinking of the right in 1868, rather than its 1791 codification, the interpreter is being faithful to the original meaning of the Privileges or Immunities Clause. An originalist jurisprudence on the federal defense of rights against state usurpations would therefore not mechanically “incorporate” a right simply because it was listed in the Bill of Rights. Instead, what it must incorporate is the understanding of the right in 1868, not the 1791 amendment itself.
In other words, the Bill of Rights as drafted was a mere enumeration of someof the pre-existing liberties “We the People” possessed. In the context of applying a right through the Privileges or Immunities Clause in 1868, the Second Amendment thus serves as little more than a short-hand reference for the natural right of bearing arms for defense of person and property. To paraphrase Justice Harlan’s dissent in Poe v. Ullman, “For it is the purposes of those guarantees [in the Bill of Rights] and not their text, the reasons for their statement by the Framers and not the statement itself which have led to their present status in the compendious notion of [privileges or immunities] embraced in the Fourteenth Amendment.”
I highly recommend this article.