Jamal Green, “Fourteenth Amendment Originalism“:
The Fourteenth Amendment is the Mr. Cellophane of originalist writing. Judges, scholars, and ordinary citizens writing or speaking in the originalist tradition consistently ignore the original understanding of the Fourteenth Amendment even when that understanding should, on originalist principles, control the outcome of the case. An originalist who believes that the Fourteenth Amendment incorporated against state governments some or all of the rights protected by the Bill of Rights should, in adjudicating cases under incorporated provisions, be concerned primarily (if not exclusively) with determining how the generation that ratified that amendment understood the scope and substance of the
rights at issue. An originalist who believes the Constitution is “colorblind” should seek justification for that view not in general considerations of policy or fairness, but in the original understanding of the Equal Protection Clause. An originalist seeking to calibrate the constitutional division of authority and responsibility between states and the national government should engage with (or expressly disclaim) changes to that division brought about by the Reconstruction amendments generally, and by the Fourteenth Amendment in particular. With limited exceptions,4 originalists do not engage in these inquiries, tending instead to focus intently on the writings and utterances of the eighteenth-century constitutional drafters. Indeed, the biographies and intentions of men like John Bingham and Jacob Howard, drafters of the most important rights-related language in the Constitution, remain unknown even to constitutional lawyers and academics, to say nothing of the average Tea Partier.
And Mike Rappaport argues that the Takings Clause has two meanings- no regulatory takings in 1791, but yes in 1868; Originalism and Regulatory Takings: Why the Fifth Amendment May Not Protect Against Regulatory Takings, But the Fourteenth Amendment May:
This articles explores the widely disputed issue of whether Takings Clause protects against regulatory takings, offering a novel and intermediate solution. Critics of the regulatory takings doctrine have argued that the original meaning of the Fifth Amendment Takings Clause does not cover regulatory takings. They have quickly moved from this claim to the conclusion that the incorporated Takings Clause under the Fourteenth Amendment also does not cover regulatory takings.
In this article, I accept the claim that the Fifth Amendment Takings Clause does not cover regulatory takings, but then explore the possibility that the incorporated Takings Clause does cover such takings. Applying Akhil Amar’s theory of incorporation, I argue that there are strong reasons, based on history, structure, and purpose, to conclude that the Takings Clause had a different meaning under the Fourteenth Amendment. Amar argues that the Bill of Rights was dominated by republican ideas, but that the Fourteenth Amendment was founded on more liberal notions intended to protect individual rights. This would suggest that a broad reading of the Takings Clause would further the principles underlying the Fourteenth Amendment.
Moreover, that some state courts had come to apply takings principles to regulatory and other nonphysical takings in the period between the enactment of the Bill of Rights and the Fourteenth Amendment provides additional support for the possibility that the Fourteenth Amendment enactors would have understood it to apply to regulatory takings. While the paper does not attempt to prove that the Fourteenth Amendment Takings Clause applies to regulatory takings, leaving that task to others, it argues that critics of regulatory takings doctrine should no longer simply assume that the Constitution’s original meaning does not apply to state regulatory takings.
However, I read Alito’s opinion in McDonald as effectively foreclosing the brand of originalism I advocated (and Green discussed) with respect to incorporated rights.
In McDonald v. Chicago, for the plurality, Justice Alito remarked that “the Court abandoned ‘the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights,’ stating that it would be ‘incongruous’ to apply different standards ‘depending on whether the claim was asserted in a state or federal court.’” In other words, even assuming the right to keep and bear arms meant one thing in 1791, and another thing in 1868 when the Fourteenth Amendment was ratified, the right as applied to the state will retain the meaning ascertained in 1791. To paraphrase Bob Marley, one right, one meaning; whether it is held against the state or federal governments. . . . This argument makes a lot of sense from a prudential and pragmatic perspective for incorporated rights. It’s a lot easier, and more fair, for “incorporated Bill of Rights protections [to be] ‘ . . . enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.’”