I came across this article, titled Avoiding Confrontation (H/T Legal Theory Blog) and was struck by one of its proposals. Here is part of the abstract:
While most scholars addressing these concerns have argued that the Court has misinterpreted the Confrontation Clause, this article believes that the Court may very well be right and confrontation doctrine may pose a problem that cannot be reconciled through traditional means. Justice Scalia was correct; perhaps we do need a separate doctrine to address these concerns. The article concludes by proposing the partial unincorporation of the Confrontation Clause as it applies to victims of domestic violence in state courts.
Unincorporation? This is an idea I have never heard of. The author explains further:
This paper has argued that the historical development of the Confrontation doctrine focused on crimes strongly unlike domestic violence and the doctrine is illsuited to address domestic violence. Given that domestic violence and related crimes are only tried in state courts, these concerns could be addressed by not applying the Sixth Amendment against states in all contexts.
Incorporation is purely judge-made law. The Constitution does not directly apply the Confrontation Clause against the states. If we believe the Court has the power to interpret the Fifth and Fourteenth Amendments to allow for incorporation and reverse incorporation, there is no reason why the Court lacks the power to rule for unincorporation. Unincorporation would require no legislative effort or constitutional amendment, but merely a court ruling.216
Finally, there is a real concern that beginning this process of unincorporation could lead to deeply problematic results. Such a move could potentially “open a can of worms” and result in the Court stripping defendants of important rights in other areas. This is why the most narrow case is argued and only after a careful examination of showing why the doctrine is incommensurate with a substantial interest in justice.
FN216- Of course the likelihood of such a ruling is independent from the mechanism by which it could occur.
I find this reasoning rather conclusory, and with no citations to precedents in which the Supreme Court has ever done this before. I’m not quite sure how “substantial justice” makes any difference as to the interpretation of the Constitution. So I’m not persuaded from a practical perspective.
But, from a purely theoretical perspective, the doctrine of “Unincorporation” could be used to right many of the misteps the Court has taken through its substantive due process selective incorporation doctrine. By unincorporating rights under the due process clause, and re-incorporating the right through the Privileges or Immunities Clause, which I argue is the much more historically accurate approach, the Supreme Court could take great steps to align our modern Constitutional jurisprudence with the original meaning of the 14th Amendment.
Now, I see absolutely zero chance of this ever happening. What this author terms a “can of worms” would be more like a Pandora’s Box. Opening up a century of precedents for reconsideration would wreak havoc on stare decisis and our entire constitutional law jurisprudence. For that reason, I would be happy if SCOTUS chose to properly extend the right to keep and bear arms through the privileges or immunities clause. But, this concept of unincorporation is an interesting thought experiment.