Regarding this post, reader Matt Estrin has this comment:
Do you think the different canons of statutory construction can/should also be applied to constitutional provisions? If so would the "reference canon" as recently used by the Supreme Court in Jam v. International Finance Corp. be a reason to actually read incorporation, whether by the Due Process Clause or the Privileges or Immunities Clause, as coextensive with the amendment/right it references at the time of the claim rather than the time of ratification? That is, the 14th amendment is a general reference to the body of law rather than a specific reference to a provision. I don't know when the canon came into force but the opinion did cite an 1890 state case so it seems like a strong possibility is was known at the time of ratification.
I know in one of your posts you said you believe we should look in reference to 1868 rather than 1791 but it seems strange to imagine the latter ratifiers understood it to mean that the right against the States would/could differ from against the federal government. This would provide the answer on originalist/textualist grounds of why it is coextensive; it's because that was the actual meaning of the 14th amendment.
I think this is a possibility well worth considering. (And it would make originalism in regard to the Fourteenth Amendment a lot easier).
Posted at 9:51 AM