Originalism and Dual-Track Incorporation

Why an originalist might think the same right can mean different things against the state and federal governments after all

There's lots to say about Monday's decision in Ramos v. Louisiana, which said that the Sixth Amendment requires unanimous jury verdicts, that the Fourteenth Amendment requires states to obey exactly the same Sixth Amendment standards as the federal government, and that any precedent to the contrary either didn't exist or was overruled. But for now I have just one thought on that middle premise — that incorporated rights must mean the same thing against the states as against the federal government.

Justice Gorsuch's opinion quickly rejects the possibility of so-called "dual-track incorporation," holding that the same rights apply against federal and state governments:

There can be no question either that the Sixth Amendment's unanimity requirement applies to state and federal criminal trials equally. This Court has long explained that the Sixth Amendment right to a jury trial is "fundamental to the American scheme of justice" and incorporated against the States under the Fourteenth Amendment. This Court has long explained, too, that incorporated provisions of the Bill of Rights bear the same content when asserted against States as they do when asserted against the federal government. [Citing Malloy v. Hogan.] So if the Sixth Amendment's right to a jury trial requires a unanimous verdict to support a conviction in federal court, it requires no less in state court.

This is generally consistent with governing precedent, and I have a lot of sympathy for this view, but I fear that something important is at risk of getting lost here.

The kind of two-track incorporation that Justice Gorsuch rejects is the "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.'" I think he rejects this notion for good reason, and it's easy to see why an originalist would be suspicious that this was just a rear-guard action to nullify the incorporation of the bill of rights.

But the fact that this kind of dual-track incorporation is wrong does not mean that all kinds of dual-track incorporation are wrong. In particular, there are at least two possibilities that originalists ought to seriously consider that would result in incorporated rights under the Fourteenth Amendment having a different scope from the enumerated rights against the federal government.

First, it's possible that incorporation is an indirect consequence of the Fourteenth Amendment rather than a direct consequence. Under several major theories of the Due Process and Privileges or Immunities Clauses, the Amendment protects the Bill of Rights not because it was a direct cross-reference to the Bill of Rights but because it protects rights with a certain property — rights understood to be fundamental in 1867/8, or at some other time, etc. On these theories of incorporation, the fundamental rights or privileges and immunities protected by the Fourteenth Amendment might have some daylight from the positive rights constitutional rights codified in 1791.

This brings us to the second issue, which is historical rather than theoretical. The public understanding of various constitutional rights was different in 1867/8 than it was in 1791. For instance, it's debatable to what extent the right to keep and bear arms was understood as a right of self-defense at the Founding, but pretty clear that it was so understood during Reconstruction. Understandings of speech and due process had changed too. A lot changed.

It's therefore quite plausible for an originalist to apply a dual-track approach, using the 1791 understanding for the federal government, and the 1867/8 understanding for the state governments. Indeed, that might even be the most intuitive approach for an originalist, like Justice Gorsuch. Now this dual-track approach is not inevitable. For instance, it's also plausible that the Framers of the 14th Amendment incorrectly believed that their understanding of the Bill of Rights was the same as that at the Founding, and that their commitment to the same-ness principle is controlling even if it leads to 1791 controlling over 1867/8. Or maybe the Fourteenth Amendment implicitly amended the Bill of Rights and re-indexed all of them to 1867/8 for both governments. But the originalist dual-track approach is plausible, and even intuitive. The rejection of a "watered-down subjective" dual-track approach doesn't tell us whether to reject an originalist dual-track approach.

I don't think this matters for Ramos. From my skim of the sources, it doesn't look like the understanding of unanimity in 1867/8 was much different than in 1791. So even if we adopt an originalist dual-track approach, the two tracks would run to the same place here. But there are plenty of cases where it will matter, and as we spend more time recovering the original meaning of the Bill of Rights and the Fourteenth Amendment, we need to figure out whether they really should be on identical tracks.

[Cross-posted from Summary, Judgment]